Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder; (c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets; (d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with; (e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law; (f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction; (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise; (h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks; (i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction; (j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party; (k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder; (l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder; (m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26). (n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties. (o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 55 contracts
Sources: Renewable Energy Credit Agreement, Renewable Energy Credit Agreement, Renewable Energy Credit Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other that, as of the Effective Date and covenants that at all times during the Term, it will ensure that:
(a) it It is a legal entity duly organized and created, validly existing and is in good standing under the laws of the jurisdiction of in which it is created, and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its incorporation business or organizationits ability to perform its obligations under this Agreement;
(b) It has all necessary legal power and authority to own, lease and operate its assets and to carry on its business as presently conducted and as it will be conducted pursuant to this Agreement;
c) It has the all necessary legal power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all necessary actions on its part;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this This Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid and bindingbinding obligation of such Party, enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fe) no Event of DefaultIt is not a party to, or Potential Event of Default, has occurred and is continuingnot bound or affected by or subject to, and none will occur any instrument, agreement, charter or by-law provision, law, rule, regulation, judgment or order which would be contravened or breached as a result of its entering into or performing the execution of this Agreement or any Transaction;
(g) it is not relying upon any representations the consummation of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) transactions contemplated hereunder;
(lf) there It is no not the subject of any pending or threatened litigation (including claims subject to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator arbitration) that is likely to materially adversely affect the ability of either would prevent such Party to perform from performing its obligations hereunder;under this Agreement; and
(mg) it It is in compliance with all applicable laws, rules, orders, regulations and other legal requirements in effect as the same may relate in a “forward contract merchant” within material way to each of its respective businesses and provision or use of the meaning Services. All such representations, warranties and covenants shall continue during the Term of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within if, at any time, any event has occurred that would make any of the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”foregoing representations or warranties not true, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to such Party shall promptly notify the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;writing.
Appears in 13 contracts
Sources: Services Agreement, Services Agreement, Services Agreement (World Monitor Trust III - Series J)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 9 contracts
Sources: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Execution Date and on each Trade Delivery Date, each Party represents and warrants to the other that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) it has the power and authority to enter into this Agreement and all Governmental Approvals necessary for it to perform its obligations hereunderunder this Agreement, except on the Execution Date only for (i) CPUC Approval in the case of Buyer, and (ii) all permits necessary to install, operate and maintain the Project in the case of Seller;
(c) its execution the execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it;
(d) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses;
(e) it is not Bankrupt and there are no proceedings pending or affecting being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(f) there is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or perform its assetsobligations under this Agreement;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fg) no Event of Default, or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(gh) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability recommendations of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement; and
(i) it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take Delivery of the Product, as provided in this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 6 contracts
Sources: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date that:
(a) it 7.1.1 such Party is duly organized organized, validly existing, and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the full corporate power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 7.1.2 execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) the performance by such Party of its obligations hereunder are have been duly authorized;
7.1.3 this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid and bindingvalid, binding obligation, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawthe terms hereof;
(f) no Event 7.1.4 the performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement by it does not create a breach or default under any Transaction;
(g) other agreement to which it is not relying upon any representations of the other Party other than those expressly set forth hereina party, and it is acting for its own account, and not as agent which breach or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by default would adversely affect the other Party;
(k) it has 7.1.5 the execution, delivery, and performance of this Agreement by such Party does not received from the other Party conflict with any assuranceagreement, guarantee instrument, or promise as understanding, oral or written, to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within party or by which it is bound, nor violate any Law of any court, governmental body or administrative or other agency having jurisdiction over such Party;
7.1.6 no government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Laws currently in effect, is or will be necessary for, or in connection with, the meaning transaction contemplated by this Agreement or any other agreement or instrument executed in connection herewith, or for the performance by it of United States Bankruptcy Code §101(26), and its obligations under this Agreement and all Transactions hereunder constitute “forward contracts” within such other agreements, except as may be required under the meaning Stock Purchase Agreement, to obtain HSR Act clearance (as further described in Section 4.1.6), or applicable Regulatory Approvals or Regulatory Filings related to the Development, Commercialization, or manufacture of Collaboration Compounds or Licensed Products; and
7.1.7 such Party has not employed and, to its knowledge, has not used a contractor or consultant that has employed, any individual or entity (i) debarred by the FDA (or subject to a similar sanction of EMEA or other applicable Regulatory Authority), (ii) who is the subject of an FDA debarment investigation or proceeding (or similar proceeding of EMEA or other applicable Regulatory Authority), or (iii) has been charged with or convicted under United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it Law for conduct relating to the other Party development or approval, or otherwise relating to the regulation of any Licensed Product under the Generic Drug Enforcement Act of 1992, in connection with this Agreement are trueeach case, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;conduct of its activities prior to the Effective Date.
Appears in 6 contracts
Sources: Collaboration and Option Agreement (Globeimmune Inc), Collaboration and Option Agreement (Globeimmune Inc), Collaboration and Option Agreement (Globeimmune Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, that:
17.1.1 it is (ai) an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, and (ii) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
17.1.8 it has entered into the Transaction Documents and will enter into any transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) it has not received from the other Party Transaction Documents and any assurancetransaction, guarantee or promise as to understands and accepts the expected or projected successterms, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderconditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder;
(l) there 17.1.10 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.11 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 6 contracts
Sources: Inventory Intermediation Agreement (PBF Finance Corp), Inventory Intermediation Agreement (PBF Finance Corp), Inventory Intermediation Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 6 contracts
Sources: Master Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) : it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) ; it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) ; all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) ; no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) Agreement; it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) ; it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) ; it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) ; it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) ; it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) ; to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) ; it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).
(n) ; it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) ; and all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;. Additional Warranties of Seller. With respect to each Designated System, Seller represents and warrants to Buyer on the Trade Date through the expiry of the Delivery Term that such Designated System complies with the Applicable Program. Upon each Delivery, Seller represents and warrants to Buyer as follows: at the time of Delivery, Seller has the right to convey title to any and all of the RECs Delivered to Buyer in accordance with this Agreement free and clear of any and all liens or other encumbrances or title defects; Seller has sold and transferred the RECs once and only once exclusively to Buyer; the RECs and any other Environmental Attributes sold hereunder have not expired and have not been, nor will be retired, claimed or represented as part of electricity output or sale, or used to satisfy any renewable energy or other carbon or renewable generation attributes obligations under Illinois law or in any other jurisdiction; and that it has made no representation, in writing or otherwise, that any third-party has received, or has obtained any right to, such RECs that are inconsistent with the rights being acquired by Buyer hereunder; and the Product is Regulatorily Continuing and complies with the Applicable Program.
Appears in 5 contracts
Sources: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 5 contracts
Sources: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Crude Oil hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into this Agreement (including any internal authorizations, approvals and performing consents required by such Party under its organizational documents) have been obtained or submitted and are in full force and effect, and all conditions of this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 it is in good standing under the laws of each jurisdiction in which it is required to perform under this Agreement, and all governmental and other authorizations, approvals, consents, notices, licenses and filings that are required to have been obtained or submitted by it in order to perform under this Agreement under the Applicable Laws of each relevant jurisdiction have been obtained or submitted and are in full force and effect;
17.1.7 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.8 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.9 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.10 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.11 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.12 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.13 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.14 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Crude Oil hereunder who is entitled to any compensation with respect thereto; and
17.1.15 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 4 contracts
Sources: Crude Oil Acquisition Agreement (PBF Energy Inc.), Crude Oil Acquisition Agreement (PBF Energy Inc.), Crude Oil Acquisition Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the date hereof, that:
(a) it is duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation and has the full corporate power and authority to execute, deliver and perform this Agreement, and to consummate the transactions contemplated hereby;
(b) it has the power execution, delivery and authority to enter into performance of this Agreement and to perform the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on its obligations hereunderpart;
(c) this Agreement has been duly executed and delivered and constitutes its execution legal, valid, and performance do not violate or conflict binding obligations enforceable against it in accordance with Applicable Law, any provision the terms of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsthis Agreement;
(d) all governmental the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing performance of this Agreement have been obtained and the consummation of the transactions contemplated hereby do not (i) violate (A) any law or submitted any governmental rule or regulation applicable to it, in any material respect, (B) memorandum and are articles of incorporation, bylaws or other charter or organizational documents, or (C) any material order, judgment or decree of any court, governmental body or administrative or other agency having jurisdiction over it; or (ii) conflict with, result in full force and effect and all conditions thereof have been complied witha breach of or constitute a default under any contract or agreement to which it is a party or by which it is bound;
(e) no consent, approval or authorization of or from any third party, including any governmental entity, whether prescribed by law, regulation, contract or agreement, is required in order for its obligations hereunder are legalexecution or delivery of this Agreement to be effective, valid except for such filings with the U.S. Securities and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally Exchange Commission as may be required under Sections 13 and subject16 of the Securities Exchange Act of 1934, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;amended; and
(f) there is no Event of Defaultaction, suit, proceeding, inquiry or investigation before or by any governmental entity or any self-regulatory organization or body pending or, to its knowledge, threatened against or affecting it that challenges, or Potential Event may have the effect of Defaultpreventing, has occurred and is continuingdelaying, and none will occur as a result of its entering into making illegal, or performing otherwise interfering with, this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinagreements, instruments and it is acting for its own account, documents executed and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending delivered or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) be executed and delivered by it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 4 contracts
Sources: Call Option Agreement (Glencore International Ag), Call Option Agreement (Givolon LTD), Share Purchase Agreement (Glencore International Ag)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other Party as of the Execution Date, and with respect to each Transaction as of the Trade Date and Delivery Date, that:
(a) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the its jurisdiction of its incorporation organization or organizationincorporation;
(b) it has the corporate, governmental, regulatory, and other legal capacity, and power to execute and authority to enter into deliver this Agreement Agreement, and to perform its obligations hereunder;
(c) its execution the execution, delivery, and performance do of this Agreement has been authorized by all necessary action on its part, including obtaining all authorizations or approvals from Governmental Authorities pursuant to all Laws, and will not violate result in any breach of or conflict with Applicable Law, default under any term or provision of its constituent documentsany other agreement, instrument, judgment, decree, order, statute, rule or any contract binding on governmental regulation to which it is otherwise a party or affecting by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsmay be bound;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it there is not relying upon any representations of the other Party other than those expressly set forth hereinpending, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigationthreatened, arbitration against it, any action, suit or administrative proceeding at law or in equity before any Governmental Authority court, governmental body, agency, or any arbitrator that is likely to materially adversely affect the its ability of either Party to perform its obligations hereunder;
(me) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by bankruptcy or any law affecting the enforcement of creditors’ rights generally and subject to equitable principles of general application;
(f) it is an “Eligible Contract Participant” as defined in Section 1a(18) of the Commodity Exchange Act;
(g) it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code §101(26)Code;
(h) it is acting for its own account, and has made its own independent decision to enter into this Agreement and all Transactions hereunder constitute “forward contracts” within each Transaction and as to whether or not this Agreement and each Transaction is appropriate or proper for it based upon its own judgment, is not relying upon the meaning advice or recommendations of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with so doing, is capable of assessing the merits of this Agreement are trueand each Transaction, accurate and complete in every material understands and accepts the terms, conditions, and risks of this Agreement and each Transaction; and
(i) no Event of Default with respect and do not omit a material fact that would otherwise make the information, document to itself has occurred or statement misleading;is continuing.
Appears in 3 contracts
Sources: Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (a) Each Party represents and warrants to the other that:
: (ai) it is duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of its incorporation or organization;
(b) it formation, and has the all requisite corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate or partnership action; and (iii) this Agreement is legally binding upon it, enforceable against it in accordance with its terms, except as enforcement may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a Party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
(cb) its Each Party represents and warrants to the other that neither the execution and performance do not the delivery of this Agreement by it, nor the consummation by it of the transactions contemplated hereby shall (with or without the giving of notices or the passage of time) (i) violate any applicable law or conflict with Applicable Lawother restriction of any government, governmental authority or court to which it is subject or any provision of its constituent the charter or bylaws (or other organizational documents) of such Party or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Third Party the right to accelerate, terminate, modify or cancel, or require any contract binding on notice under any agreement, contract, lease, license, instrument or affecting other arrangement to which it is a party or by which it or any of its assets or any order or judgment is bound which (in the case of any Governmental Authority applicable to it or its assets;
clause (dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(eonly) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially could adversely affect the ability consummation of either Party to perform its obligations hereunder;
the transactions contemplated hereby or result in the imposition of any lien, security interest, charge, claim, encumbrance, limitation, restriction on use or transfer, conditional sale or other title retention device or arrangement (m) it is including a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26capital lease), and this Agreement and all Transactions hereunder constitute “forward contracts” within transfer for the meaning purpose of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it subjection to the payment of any indebtedness, or restriction on the creation of any of the foregoing, upon any of the AMYRIS Technology. AMYRIS is not required by any Legal Requirement to give any notice to, make any filing with or obtain any authorization, consent or approval of, any government or governmental authority or other Party third party in connection with order for AMYRIS to consummate the transactions contemplated by this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 3 contracts
Sources: Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.), Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.), Technology License, Development, Research and Collaboration Agreement (Amyris, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) : it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) ; it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) ; all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) ; no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) Agreement; it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) ; it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) ; it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) ; it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) ; it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) ; to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) ; it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).
(n) ; it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) ; and all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;. Additional Warranties of Seller. Seller represents and warrants to Buyer upon the Date of First Operation and on each Delivery Date through the expiry of the Delivery Term that all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with. Upon each Delivery, Seller represents and warrants to Buyer as follows: at the time of Delivery, Seller has the right to convey title to any and all of the RECs Delivered to Buyer in accordance with this Agreement free and clear of any and all liens or other encumbrances or title defects; Seller has sold and transferred the RECs once and only once exclusively to Buyer; the RECs and any other Environmental Attributes sold hereunder have not expired and have not been, nor will be retired, claimed or represented as part of electricity output or sale, or used to satisfy any renewable energy or other carbon or renewable generation attributes obligations under Illinois law or in any other jurisdiction; and that it has made no representation, in writing or otherwise, that any third-party has received, or has obtained any right to, such RECs that are inconsistent with the rights being acquired by Buyer hereunder; and the Product is Regulatorily Continuing and complies with the Applicable Program.
Appears in 3 contracts
Sources: Renewable Energy Credit Agreement, Renewable Energy Credit Agreement, Renewable Energy Credit Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to and in favour of the other thatParty as follows and acknowledges that the other Party is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it CBCA and has the corporate power and authority to enter into this Agreement own its Assets and to conduct its businesses and to perform its obligations hereunder;
(b) the execution and delivery of this Agreement, of the Ancillary Agreements and of the Reorganization Documents by it and the completion by it of the transactions contemplated herein, in the Ancillary Agreements, in the Reorganization Documents, in the Plan of Arrangement and in the Tax Rulings do not and will not result in the breach of, or violate any term or provision of, its articles or by-laws;
(c) its execution and performance do not violate or conflict with Applicable Lawneither it nor, any provision in the case of its constituent documentsNovelis, or any contract binding on or affecting it or any of its assets Group members is subject to any outstanding injunction, judgment or any order or judgment order, of any Governmental Authority applicable which would prevent or materially delay the transactions contemplated by this Agreement, the Ancillary Agreements, the Reorganization Documents, the Plan of Arrangement or the Tax Rulings; there are no civil, criminal or administrative claims, actions, suits, demands, proceedings, hearings or investigations pending or, to it the Party's knowledge, threatened, at law, in equity or its assetsotherwise, in, before, or by, any Governmental Authority which (if successful) would prevent or materially delay the consummation of the transactions contemplated by this Agreement, the Ancillary Agreements, the Reorganization Documents, the Plan of Arrangement or the Tax Rulings;
(d) all governmental the facts and other authorizations, approvals, consents, notices information which appear in the Rulings Applications relevant to it are accurate in all material respects and filings there has been no omission to state a material fact or to provide other material information relating to it that are required would be relevant to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe granting of the Tax Rulings;
(e) no dissolution, winding up, bankruptcy, liquidation or similar proceeding has been commenced, or is pending or proposed, in respect of it, except as contemplated by the Plan of Arrangement; and
(f) the execution and delivery of this Agreement, of the Ancillary Agreements and of the Reorganization Documents and the completion of the transactions contemplated herein, in the Ancillary Agreements and in the Reorganization Documents, have been duly approved by its obligations hereunder are board of directors, and this Agreement, the Ancillary Agreements and the Reorganization Documents constitute legal, valid and binding, binding obligations of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or legislation relating to bankruptcy, insolvency, reorganization and other similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles legislation of general application regardless and other laws affecting the enforcement of whether creditors' rights generally, to general principles of equity and limitations upon the enforcement is sought in a proceeding in equity of indemnification for fines or at law;
(f) no Event of Default, or Potential Event of Default, has occurred penalties imposed by law and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations to the discretionary power of the other Party other than those expressly set forth herein, and it is acting for its own account, and not courts as agent regards specific performance or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)injunctive relief.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Sources: Separation Agreement (Alcan Inc), Separation Agreement (Novelis Inc.), Separation Agreement (Novelis Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other Party as of the Execution Date, and with respect to each Transaction as of the Trade Date and Delivery Date, that:
(a) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the its jurisdiction of its incorporation organization or organizationincorporation;
(b) it has the corporate, governmental, regulatory, and other legal capacity, and power to execute and authority to enter into deliver this Agreement Agreement, and to perform its obligations hereunder;
(c) its execution the execution, delivery, and performance do of this Agreement has been authorized by all necessary action on its part, including obtaining all authorizations or approvals from Governmental Authorities pursuant to all Laws, and will not violate result in any breach of or conflict with Applicable Law, default under any term or provision of its constituent documentsany other agreement, instrument, judgment, decree, order, statute, rule or any contract binding on governmental regulation to which it is otherwise a party or affecting by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsmay be bound;
(d) all there is not pending, or to its knowledge threatened, against it, any action, suit or proceeding at law or in equity before any court, governmental and other authorizationsbody, approvalsagency, consents, notices and filings or any arbitrator that are required is likely to have been obtained or submitted by it with respect materially adversely affect its ability to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withperform its obligations hereunder;
(e) this Agreement constitutes its obligations hereunder are legal, valid and binding, binding obligation enforceable against it in accordance with their respective its terms, subject to applicable except as may be limited by bankruptcy or similar laws any law affecting the enforcement of creditors’ rights generally and subject, as to enforceability, subject to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawapplication;
(f) no Event it is an “Eligible Contract Participant” as defined in Section 1a(18) of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionthe Commodity Exchange Act;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into this Agreement and each transaction Transaction and as to whether such transaction or not this Agreement and each Transaction is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability recommendations of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with so doing, is capable of assessing the merits of this Agreement are trueand each Transaction, accurate and complete in every material understands and accepts the terms, conditions, and risks of this Agreement and each Transaction; and
(h) no Event of Default with respect and do not omit a material fact that would otherwise make the information, document to itself has occurred or statement misleading;is continuing.
Appears in 3 contracts
Sources: Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement, Master Allowance/Offset Credit Purchase Agreement
Mutual Representations and Warranties. On the Effective Date Each of Buyer and on each Trade DateSeller (for itself, each Party not jointly, but severally) represents and warrants to the other that:
that (ai) it is duly organized authorized to execute and validly existing deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance; (ii) it will engage in such Transactions as principal; (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf; (iv) this Agreement is legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar debtor/creditor laws and general principles of equity and public policy, (v) no approval, consent or authorization of any Transaction contemplated by this Agreement from any federal, state, or local regulatory authority having jurisdiction over it is required or, if required, such approval, consent or authorization has been or will, prior to the Purchase Date for such Transaction, be obtained; (vi) the execution, delivery, and performance of this Agreement and the Transactions hereunder will not violate any law, regulation, order, judgment, decree, ordinance, charter, by-law, or rule applicable to it or its property or constitute a default (or an event which, with notice or lapse of time, or both would constitute a default) under the laws or result in a breach of the jurisdiction any material agreement or other material instrument by which it is bound or by which any of its incorporation or organization;
assets are affected; (bvii) it has the power received approval and authority authorization to enter into this Agreement and each and every Transaction actually entered into hereunder pursuant to perform its obligations hereunder;
internal policies and procedures; and (cviii) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing neither this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of nor any Transaction will not be considered investment advice pursuant hereto are entered into in contemplation of insolvency or a recommendation with intent to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate hinder, delay or proper for it based upon its own judgment and defraud any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)creditor.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Sources: Master Repurchase Agreement (Bingham Financial Services Corp), Master Repurchase Agreement (Bingham Financial Services Corp), Master Repurchase Agreement (Bingham Financial Services Corp)
Mutual Representations and Warranties. On the Effective Date Buyer and on Seller each Trade Date, each Party represents and warrants to the other as of the Effective Date, the Delivery Commencement Date and as of each Delivery that:
(ai) it There are no suits, proceedings, judgments, ruling or orders pending, or to its Knowledge, threatened, by or before any court or any Governmental Authority that materially and adversely affect its ability to perform, or the rights of the other Party, under this Agreement.
(ii) It is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) formation, and it has the legal right, power and authority and is qualified to enter into this Agreement conduct its business and to perform its obligations hereunder;.
(ciii) its execution The making and performance do not violate by it of this Agreement is within its powers and has been duly authorized by all necessary action on its part.
(iv) This Agreement constitutes a legal, valid and binding act and obligation of it, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws affecting creditor’s rights generally.
(v) No Event of Default under Clause 24 with respect to it or, to its Knowledge, event, which with notice and or conflict with Applicable Lawa lapse of time would constitute such an Event of Default, any provision has occurred and is continuing, and no such event or circumstance would occur as a result of its constituent documentsentering into or performing its obligations under this Agreement.
(vi) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the Commodity Exchange Act, or any as amended.
(vii) It is a “forward contract binding on or affecting merchant,” as defined in Section 101(26) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil hereunder, and each sale of Oil hereunder is a forward contract for purposes of the Bankruptcy Code.
(viii) It is a “master netting agreement participant,” as defined in Section 101(38B) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil hereunder, and each sale of Oil hereunder is a master netting agreement for purposes of the Bankruptcy Code.
(ix) Neither it or nor any of its assets Affiliates has been contacted by or negotiated with any order finder, broker or judgment other intermediary in connection with the sale of Oil hereunder who is entitled to any Governmental Authority applicable to it or its assets;compensation with respect thereto.
(dx) all All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement and its performance hereunder and the consummation by it of the transactions contemplated hereby have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with;.
(exi) The execution, delivery and performance of this Agreement do not violate or conflict with (a) any Law applicable to it, (b) any provision of its obligations hereunder are legalconstitutional documents, valid (c) any order or judgment of any court or Governmental Authority applicable to it or any of its assets or (d) any contractual restriction binding on or affecting it or any of its assets, except to the extent such conflict or violation has not and binding, enforceable in accordance with their respective terms, subject could not be reasonably expected to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in cause a proceeding in equity or at law;Material Adverse Change.
(fxii) no Event of DefaultIt possesses all necessary permits, or Potential Event of Defaultauthorizations, has occurred registrations and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party licenses required to perform its obligations hereunder;
(m) it is hereunder and to consummate the transactions contemplated hereby, except to the extent such conflict or violation has not and could not be reasonably expected to cause a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Material Adverse Change.
(nxiii) it It is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation not bound by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the any other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact agreement that would otherwise make the informationpreclude its execution, document delivery, or statement misleading;performance of this Agreement.
Appears in 3 contracts
Sources: Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party (a) Supplier hereby represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) a duly and validly organized and existing corporation in good standing under the laws of the other Party as investment advice or as a recommendation to enter into a transactionstate of Florida, and understands that information it or its Affiliates that may be performing its obligations under this Agreement are legally qualified to do business in each jurisdiction in which this Agreement may be performed and explanations related to where its activities hereunder require such qualification,
(ii) the terms performance of this Agreement and conditions the consummation of the transactions contemplated herein will not result in any breach, conflict, or violation of any Transaction will not be considered investment advice terms or provisions of, or constitute a recommendation default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to enter into that Transaction;which it is a party, by which it is bound, or to which any of its property is subject,
(jiii) all requisite corporate action has been taken for the due authorization, execution, delivery, and performance of this Agreement by it, and this Agreement constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the rights of creditors generally, and
(iv) it has made is not a party to any litigation relating to, or that could reasonably be expected to affect, its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;under this Agreement.
(mb) BioForm hereby represents and warrants that:
(i) it is a “forward contract merchant” within duly and validly organized and existing corporation in good standing under the meaning laws of United States Bankruptcy Code §101(26)the state of Delaware, and that it or its Affiliates that may be performing its obligations under this Agreement are legally qualified to do business in each jurisdiction in which this Agreement may be performed and where its activities hereunder require such qualification,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken for the due authorization, execution, delivery, and performance of this Agreement by it, and this Agreement and all Transactions hereunder constitute “forward contracts” within constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the meaning rights of United States Bankruptcy Code §101(26).creditors generally, and
(niv) it is an “eligible commercial entity”not a party to any litigation relating to, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12)or that could reasonably be expected to affect, respectively, and all Transactions hereunder have been subject its ability to individual negotiation by the Partiesperform its obligations under this Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Sources: Exclusive Development, Distribution, and Supply Agreement, Exclusive Development, Distribution, and Supply Agreement (Bioform Medical Inc), Exclusive Development, Distribution, and Supply Agreement (Bioform Medical Inc)
Mutual Representations and Warranties. On the Effective Date Buyer and on Seller each Trade Date, each Party represents and warrants to the other as of the Effective Date and as of each Delivery that:
(ai) it There are no suits, proceedings, judgments, rulings or orders pending, or to its Knowledge, threatened, by or before any court or any Governmental Authority that materially and adversely affect its ability to perform, or the rights of the other Party, under this Agreement.
(ii) It is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) formation, and it has the legal right, power and authority and is qualified to enter into this Agreement conduct its business and to perform its obligations hereunder;.
(ciii) its execution The making and performance do not violate by it of this Agreement is within its powers and has been duly authorized by all necessary action on its part.
(iv) This Agreement constitutes a legal, valid and binding act and obligation of it, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws affecting creditor’s rights generally.
(v) No Event of Default under Clause 24 with respect to it or, to its Knowledge, event, which with notice and or conflict with Applicable Lawa lapse of time would constitute such an Event of Default, any provision has occurred and is continuing, and no such event or circumstance would occur as a result of its constituent documentsentering into or performing its obligations under this Agreement.
(vi) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the Commodity Exchange Act, or any as amended.
(vii) It is a “forward contract binding on or affecting merchant,” as defined in Section 101(26) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil and Feedstock hereunder, and each sale of Oil and Feedstock hereunder is a forward contract for purposes of the Bankruptcy Code.
(viii) It is a “master netting agreement participant,” as defined in Section 101(38B) of the Bankruptcy Code, in respect of this Agreement and each sale of Oil and Feedstock hereunder, and each sale of Oil and Feedstock hereunder is a master netting agreement for purposes of the Bankruptcy Code.
(ix) Neither it or nor any of its assets Affiliates has been contacted by or negotiated with any order finder, broker or judgment other intermediary in connection with the sale of Oil and Feedstock hereunder who is entitled to any Governmental Authority applicable to it or its assets;compensation with respect thereto.
(dx) all All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement and its performance hereunder and the consummation by it of the transactions contemplated hereby have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with;.
(exi) The execution, delivery and performance of this Agreement do not violate or conflict with (a) any Law applicable to it, (b) any provision of its obligations hereunder are legalconstitutional documents, valid (c) any order or judgment of any court or Governmental Authority applicable to it or any of its assets or (d) any contractual restriction binding on or affecting it or any of its assets, except to the extent such conflict or violation has not and binding, enforceable in accordance with their respective terms, subject could not be reasonably expected to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in cause a proceeding in equity or at law;Material Adverse Change.
(fxii) no Event of DefaultIt possesses all necessary permits, or Potential Event of Defaultauthorizations, has occurred registrations and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party licenses required to perform its obligations hereunder;
(m) it is hereunder and to consummate the transactions contemplated hereby, except to the extent such conflict or violation has not and could not be reasonably expected to cause a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Material Adverse Change.
(nxiii) it It is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation not bound by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the any other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact agreement that would otherwise make the informationpreclude its execution, document delivery, or statement misleading;performance of this Agreement.
Appears in 3 contracts
Sources: Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.), Crude Oil/Feedstock Supply/Delivery and Services Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated, continued or formed, as applicable, and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or conflict with Applicable Law, any provision of its constituent constating documents;
(ii) conflict with, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any contract binding on agreement, instrument, license, permit or affecting authority to which it is a party or by which it is bound, or to which any assets of such Party are subject, or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a material adverse effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transaction contemplated herein have been obtained duly approved by its board of directors or submitted by it with respect to entering into the board of directors of its general partner (as applicable) and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 3 contracts
Sources: Arrangement Agreement (Brookfield Infrastructure Corp), Arrangement Agreement (Brookfield Renewable Corp), Arrangement Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Effective Date:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization or organizationincorporation;
(b) it has the power to execute and authority to enter into deliver this Agreement and to perform its obligations hereunderunder this Agreement and has taken all necessary corporate, company, partnership, governmental and/or other actions to authorize such execution and delivery and performance of such obligations;
(c) its execution and delivery of this Agreement and its performance of its obligations under this Agreement do not violate or conflict with Applicable Law, any law applicable to it; with any provision of its charter or bylaws (or comparable constituent documents, ); with any order or judgment of any court or other agency of government applicable to it or any contract of its assets; or with any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;; PUBLIC VERSION
(d) there are no actions, suits, proceedings or investigations pending or, to the knowledge of the Party, threatened against it at law or in equity before any court or tribunal of the United States or any other jurisdiction that individually or in the aggregate could result in any materially adverse effect on the Party's business, properties, or assets or its condition, financial or otherwise, or in any impairment of its ability to perform its obligations under this Agreement;
(e) all authorizations of and exemptions, actions or approvals by, and all notices to or filings with, any governmental and other authorizations, approvals, consents, notices and filings authority that are required to have been obtained or submitted made by it at the time this representation is made with respect to entering into and performing this Agreement have been obtained or submitted made and are in full force and effect effect, and all conditions thereof of any such authorizations, exemptions, actions or approvals have been complied with;
; (e) 0 the Party has knowledge of all laws and business practices that must be followed in performing its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing under this Agreement or any Transaction;
(g) it and the Party is not relying upon any representations of the other Party other than those expressly set forth herein, in compliance with all such laws and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related business practices except to the terms and conditions of any Transaction will not be considered investment advice or extent that failure to comply therewith would not, in the aggregate, have a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by material adverse effect on the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Renewable Power Purchase Agreement, Renewable Power Purchase Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable LawLawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactiontransactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction transactionTransaction and as to whether such transaction transactionTransaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).);
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Sources: Master Renewable Energy Certificate Credit Purchase and Sale Agreement, Master Renewable Energy Certificate Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Sources: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) it is duly organized such Party has the full corporate right, power, and validly existing under authority to execute, deliver, and perform the laws Agreement and to consummate the transactions contemplated hereby and thereby and the execution, delivery, and performance of the jurisdiction Agreement and the consummation of its incorporation or organizationthe transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of such Party;
(b) the Agreement has been duly executed and delivered by an authorized officer of such Party, and is a legal, valid, and binding obligation of such Party enforceable against it has in accordance with its terms, except as enforcement may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and the power effect of applicable bankruptcy, insolvency, moratorium and authority other similar laws of general application relating to enter into this Agreement or affecting creditors’ rights generally, including the effect of statutory or other laws regarding fraudulent conveyances and to perform its obligations hereunderpreferential transfers;
(c) its execution such Party’s execution, delivery and performance do of the Agreement shall not violate constitute a breach or conflict with Applicable Law, any provision of its constituent documents, or default under any contract binding on or affecting agreement to which such Party is a party or by which it is bound or any of its assets or any order or judgment otherwise violate the rights of any Governmental Authority applicable to it Third Party or its assetsviolate any Legal Requirement;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by neither it with respect to entering into and performing nor any of its personnel (including subcontractors) carrying out activities under this Agreement have been obtained nor are disqualified or submitted debarred under Section 306 of the Federal Food, Drug and Cosmetic Act (as amended by the Generic Drug Enforcement Act of 1992), 21 U.S.C. § 336 or are in full force and effect and all conditions thereof have been complied withlisted on any Exclusion List;
(e) its obligations hereunder are legalduring the Pre-Closing Period, valid it shall not use in any capacity the services of any Person debarred or disqualified under the provisions of Section 306 of the Federal Food, Drug and bindingCosmetic Act (as amended by the Generic Drug Enforcement Act of 1992), enforceable 21 U.S.C. § 336 or listed on an Exclusion List to carry out any activity under the Agreement and will notify the other Party immediately in accordance with their respective terms, subject to applicable bankruptcy the event the Party is made aware that any Person carrying out any activity under the Agreement is debarred or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity disqualified or at law;listed on an Exclusion List; and
(f) no Event of Defaultduring the Pre-Closing Period, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or it shall not use any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice Ineligible Person or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is Person on an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party Exclusion List in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document performance of any of its obligations or statement misleading;activities under the Agreement.
Appears in 2 contracts
Sources: Collaboration Agreement (Hyperion Therapeutics Inc), Collaboration Agreement (Medicis Pharmaceutical Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each Assignor hereby represents and warrants to Assignee, and Assignee, on behalf of the other Purchasing Accounts, hereby represents and warrants to each Assignor as of the date of this Agreement and as of the Payment Date that:
(a) it is duly organized has full power and validly existing under authority and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations hereunder and to consummate the laws of the jurisdiction of its incorporation or organizationtransactions contemplated hereby;
(b) the making and performance by it has the power and authority to enter into of this Agreement does not and will not violate any law or regulation of the jurisdiction under which it exists, any other law applicable to perform its obligations hereunderit or any other agreement to which it is a party or by which it is bound;
(c) this Agreement has been duly and validly authorized, executed and delivered by it and is legal, valid, binding and enforceable against it in accordance with its execution and performance do not violate terms except that the enforceability may be limited by bankruptcy, insolvency or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetslaws governing creditors rights;
(d) all governmental any consent, approval, filing or corporate, partnership or other action required as a condition to or in connection with the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing performance of this Agreement have has been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;obtained; and
(e) its obligations hereunder are legal, valid Assignor and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally Assignee each has adequate information concerning the business and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations financial condition of the other Party other than those expressly set forth hereinDebtor and the status of the Proceedings in order to make an informed decision regarding the sale and purchase of Assignor’s Assigned Claims, and it is acting for has independently and without reliance on the other with respect to such information, and based on such information as each has deemed appropriate (including information available from the files of the Court of the Proceedings), made its own account, analysis and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation decision to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Assignment of Claim Agreement, Assignment of Claim Agreement (C Cor Net Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Product hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of this Agreement have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.8 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.9 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.10 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.11 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.12 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.13 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.14 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Sources: Products Offtake Agreement (PBF Energy Inc.), Products Offtake Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the Effective Date, that:
: (aA) it is a corporation duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of its incorporation or organization;
formation; (bB) it has the full corporate power and authority to enter into execute, deliver and perform this Agreement, and has taken all corporate action required by applicable law and its organizational documents to authorize the execution and delivery of this Agreement and to perform its obligations hereunder;
the consummation of the transactions contemplated by this Agreement; (cC) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding agreement enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
; (f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(oD) all applicable informationconsents, documents approvals and authorizations from all Governmental Authorities or statements that have been furnished in writing other Third Parties required to be obtained by or on behalf of it to the other Party in connection with this Agreement are truehave been obtained; (E) the execution and delivery of this Agreement, accurate and complete in every material respect and the consummation of the transactions contemplated hereby, do not omit and shall not (x) conflict with or result in a breach of 21 any provision of its organizational documents, (y) result in a breach of any other agreement to which it is a party, or (z) violate any appliable law; (F) it has and will at all times during the Term comply with all applicable laws in all material fact that would otherwise make respects, including obtaining all necessary licenses, permits, and authorizations necessary to perform this Agreement and to exploit any license or rights granted to it hereunder, as now or hereafter required under any applicable statutes, laws, ordinances, rules and regulations; and (G) it has not prior to the informationEffective Date and shall not during the Term (x) have been debarred under Article 306 of the FDCA, document 21 U.S.C. § 335a(a) or statement misleading;(b), or any equivalent foreign or local law, rule or regulation, or (y) use or employ in any capacity related to the subject matter of this Agreement or activities hereunder any individual, corporation, partnership, or association which has been debarred under Article 306 of the FDCA, 21 U.S.C. § 335a(a) or (b), or any equivalent foreign or local law, rule or regulation.
Appears in 2 contracts
Sources: Manufacturing Rights Agreement (Sutro Biopharma, Inc.), Manufacturing Rights Agreement (Vaxcyte, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated, continued or formed, as applicable, and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate or other power and authority to enter into this Agreement and (acting through its general partner, as applicable) and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it (acting through its general partner, as applicable) and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or conflict with Applicable Law, any provision of its constituent constating documents;
(ii) conflict with, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any contract binding on agreement, instrument, license, permit or affecting authority to which it is a party or by which it is bound, or to which any assets of such Party are subject, or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a material adverse effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as may be contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transaction contemplated herein have been obtained duly approved by its board of directors or submitted by it with respect to entering into the board of directors of its general partner (as applicable) and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Arrangement Agreement (Brookfield Business Partners L.P.), Arrangement Agreement (Brookfield Business Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the Commencement Date and as of the date of any purchase of Product hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into this Agreement (including any internal authorizations, approvals and performing consents required by such Party under its organizational documents) have been obtained or submitted and are in full force and effect, and all conditions of this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.8 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.9 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.10 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.11 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.12 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.13 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.14 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Sources: Products Offtake Agreement (PBF Energy Inc.), Products Offtake Agreement (PBF Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the date hereof that:
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;and in good standing under such laws.
(b) it It has the corporate, governmental or other legal capacity, authority and power and authority to enter into execute this O&M Agreement, to deliver this O&M Agreement and to perform its obligations hereunder;under this O&M Agreement, and has taken all necessary action to authorize the foregoing.
(c) its execution The execution, delivery and performance of this O&M Agreement do not violate or conflict with any Applicable Law, any provision of its constituent constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;.
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing Its obligations under this O&M Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) constitute its obligations hereunder are legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, its terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;law and an implied covenant of good faith and fair dealing).
(e) There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this O&M Agreement or its ability to perform its obligations under this O&M Agreement.
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it It is not relying upon any representations of the other Party Party, other than those expressly set forth herein, and it is acting for its own account, in this O&M Agreement.
(g) It has entered into this O&M Agreement as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto ), with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;.
(ih) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it It has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it (including their suitability) based upon its own judgment and any advice from such its advisors as it has deemed necessary necessary, and not in reliance upon any view expressed by the other Party;.
(i) The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this O&M Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this O&M Agreement and (iii) has not given to it any assurance or guarantee as to the expected performance or result of this O&M Agreement.
(j) Neither it nor any of its Affiliates has negotiated with any finder, broker or other intermediary in connection with this O&M Agreement or the transactions hereunder.
(k) it None of its directors, officers, employees or agents or those of its Affiliates has not received from the other Party or will receive any assurancecommission, guarantee fee, rebate, gift or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability entertainment of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party significant value in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;O&M Agreement.
Appears in 2 contracts
Sources: Operating and Maintenance Agreement (Blueknight Energy Partners, L.P.), Operating and Maintenance Agreement (Blueknight Energy Partners, L.P.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Execution Date, each Party represents and warrants to the other Party that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) it has the power and authority to enter into this Agreement and all Governmental Approvals necessary for it to perform its obligations hereunderunder this Agreement, except on the Execution Date only for CPUC Approval in the case of PacifiCorp;
(c) its execution the execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it;
(d) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally;
(e) it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(f) there is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or perform its assetsobligations under this Agreement;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fg) no Event of Default, or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(gh) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by or recommendations of the other PartyParty in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(mi) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of the United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.Act; and
(oi) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take Delivery of the Product, as provided in this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 2 contracts
Sources: Renewable Energy Credit Purchase and Sale Agreement, Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party DISH represents and warrants to the other that:
T-Mobile, and T-Mobile represents and warrants to DISH, that (ai) it is a legal entity duly organized and organized, validly existing and in good standing under the laws Laws of the its jurisdiction of organization and has all governmental licenses, authorizations, permits, consents and approvals required to carry on its incorporation or organization;
business as now conducted; (bii) it has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder and activities contemplated hereby; (iii) it is duly qualified as a foreign entity and is in good standing in each jurisdiction where such qualification is required, except for those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on its ability to fulfill its obligations hereunder;
; (civ) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and bindingbinding obligations on it, enforceable against it in accordance with their respective termsits terms (except as enforceability may be limited by applicable bankruptcy, subject to applicable bankruptcy or insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting of general applicability relating to or effecting creditors’ rights generally or by general equity principles); (v) from the date of the Purchase Agreement through the Closing Date of the Purchase Agreement, DISH has taken no action that would have constituted a Restricted Transfer pursuant to Section 12.7 or a Change of Control pursuant to Section 12.8 had those provisions been in effect during that period of time; and subject(vi) the execution, as to enforceabilitydelivery and performance of this Agreement will not conflict with, to equitable principles of general application regardless of whether enforcement is sought violate or result in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations breach of the other Party other than those expressly set forth herein, and it is acting for its own account, and not “FCC MNSA Approval” (as agent or defined in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26Purchase Agreement).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Master Network Services Agreement (DISH Network CORP), Master Network Services Agreement (T-Mobile US, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 2 contracts
Sources: Master Renewable Energy Credit Purchase and Sale Agreement, Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date FMI and on Roche each Trade Date, each Party represents represent and warrants to the other warrant that:
(a) it is duly organized has all requisite power and validly existing authority to enter into and perform its obligations under the laws of the jurisdiction of its incorporation or organizationthis Agreement;
(b) it has no outstanding agreement or obligation that is in conflict with any of the power and authority to enter into provisions of this Agreement or that would preclude its personnel from complying with the provisions hereof;
(c) all of its employees, officers and consultants have executed agreements requiring assignment to it of all Inventions made by such individuals during the course of and as a result of their participation in activities under this Agreement;
(d) the execution, delivery and performance of this Agreement by it and all instruments and documents to be delivered by it hereunder: (i) are within its corporate power; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of any of its formation or governing documents; (iv) to its knowledge, will not violate any law or regulation or any order or decree of any court of governmental instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which it is a party or by which it or any of its property is bound, which violation would have an adverse effect on its financial condition or on its ability to perform its obligations hereunder; and (vi) do not require any filing or registration with, or the consent or approval of, any governmental body, agency, authority or any other person, which has not been made or obtained previously (other than approvals required under the HSR Act, Regulatory Approvals required for the sale of Products and filings with Regulatory Authorities required in connection with Products);
(ce) its execution and performance do not violate there are no claims or conflict investigations (other than with Applicable Lawrespect to the Parties’ HSR filings), any provision of its constituent documents, pending or any contract binding on or affecting threatened against it or any of its assets Affiliates, at law or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Defaultequity, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into before or performing by any governmental authority relating to the matters contemplated under this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to would materially adversely affect the its ability of either Party to perform its obligations hereunder;; and
(mf) neither it nor any of its Affiliates is a “forward contract merchant” within or will be under any obligation to any person, contractual or otherwise, that is conflicting with the meaning terms of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make impede the information, document or statement misleading;fulfillment of its obligations hereunder.
Appears in 2 contracts
Sources: Collaboration Agreement (Foundation Medicine, Inc.), Collaboration Agreement (Foundation Medicine, Inc.)
Mutual Representations and Warranties. On the Effective Date Each of SLP and on each Trade Date, each Party Sol-Gel hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws Laws of the jurisdiction of in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including, without limitation, the right to grant the licenses granted by it hereunder;
(bi) it has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of the Agreement and the performance of its obligations hereunder; and (iii) the Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(c) it is not a party to any agreement that would materially prevent it from granting the rights granted to the other Party under this Agreement or performing its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsobligations under the Agreement;
(d) all governmental and other authorizationsto its knowledge, approvalsno consent, consents, notices and filings that are approval or agreement of any person or Governmental Authority is required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;Agreement; and
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from been debarred by the FDA, is not the subject of a conviction described in Section 306 of the FD&C Act, and is not subject to any similar sanction of any other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect outside of the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26)U.S., and this Agreement and all Transactions hereunder constitute “forward contracts” within neither it nor any of its Affiliates has used, in any capacity, any person or entity who either has been debarred by the meaning FDA, is the subject of United States Bankruptcy Code §101(26).
(n) it a conviction described in Section 306 of the FD&C Act or is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by any such similar sanction inside or outside of the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;U.S.
Appears in 2 contracts
Sources: License Agreement (Sol-Gel Technologies Ltd.), License Agreement (Sol-Gel Technologies Ltd.)
Mutual Representations and Warranties. On Bunge hereby makes the Effective Date following representations and on each Trade Datewarranties to Solazyme, each Party represents and warrants Solazyme hereby makes the following representations and warranties to the other thatBunge:
(a) it It is a company duly organized and organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized. It has all requisite corporate power and authority to own its respective properties and to carry on its respective business as conducted as of the date of this Agreement and as proposed to be conducted. It is duly licensed or qualified to transact business and is in good standing in each jurisdiction wherein the character of the property owned or leased, or the nature of the activities conducted, make such licensing or qualification necessary, except where the failure to be so licensed or qualified would not have a Material Adverse Effect on its incorporation business or organization;properties. It has the requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(b) Except as provided in Sections 4.5 and 4.6, all corporate action on the part of it, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement, and the performance of its obligations hereunder, have been taken, and this Agreement, when executed and delivered by it, shall constitute valid and legally binding obligations of it, enforceable against it in accordance with its terms except to the extent that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) the remedy of specific performance or injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding herefore may be brought.
(c) The execution, delivery and performance of this Agreement (with or without the giving of notice, the lapse of time or both), and the consummation of the transactions contemplated hereby, (i) do not require the consent of any Third Party; (ii) do not conflict with, result in a breach of, or constitute a material default under, its organizational documents or in any material respect with any other material contract or agreement to which it is a party or by which it may be bound or affected; and (iii) do not violate in any material respect any provision of Applicable Law or any order, injunction, judgment or decree of any government authority by which it may be bound, or require any regulatory filings or other actions to comply with the requirements of Applicable Law, except in relation to SBDC Approval. It is not a party to, nor is it bound by, any agreement or commitment that prohibits the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(d) No insolvency proceedings of any character, including bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary, affecting it are pending or threatened, and it has not made any assignment for the benefit of creditors or taken any action in contemplation of, or that would constitute the basis for, the institution of such insolvency proceedings.
(e) There is no action, suit, proceeding or investigation pending or threatened against it that questions the validity of this Agreement, or its ability to consummate the transactions contemplated hereby. It is not in violation of any Applicable Law in respect of the conduct of its business or the ownership of its properties, which violation would have a Material Adverse Effect on its business or the ownership of its properties.
(f) On the date hereof, it has the power financial strength and authority resources to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of consummate the other Party other than those expressly set forth transactions contemplated herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to under the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper provided for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Joint Venture Framework Agreement, Joint Venture Framework Agreement (Solazyme Inc)
Mutual Representations and Warranties. On the Effective Date MedImmune and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
7.1.1. It is a corporation or limited liability company (aas applicable) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
7.1.2. The execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (a) such Party’s charter documents, bylaws or other organizational documents; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
any requirement of any Applicable Law; or (c) its execution and performance do not violate any order, writ, judgment, injunction, decree, determination or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment award of any Governmental Authority court or governmental agency presently in effect applicable to it or its assetssuch Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this 7.1.3. This Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding at law or equity); *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
7.1.4. It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in equity or at law;
(f) no Event any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations that would impede the diligent and complete fulfillment of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;; and
(m) 7.1.5. Neither it nor any of its Affiliates has been debarred or is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the Parties.
(o) all applicable informationservices or activities to be performed under this Agreement, documents any Person who has been debarred pursuant to Section 306 of the FFDCA or statements that have been furnished who is the subject of a conviction described in writing by or on behalf of it to such section. It will inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services or activities hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 2 contracts
Sources: License Agreement (PhaseBio Pharmaceuticals Inc), License Agreement (PhaseBio Pharmaceuticals Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) as of the Effective Date, it is a corporation duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organizationincorporation, and it has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement;
(b) as of the Effective Date, it has the full right, power and authority to enter into this Agreement and to perform its obligations hereundergrant the rights granted by it under this Agreement;
(c) as of the Effective Date, there are no existing or, to its execution and performance do not violate knowledge, threatened actions, suits or conflict claims pending with Applicable Law, any provision respect to the subject matter of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it this Agreement or its assetsright to enter into and perform its obligations under this Agreement;
(d) as of the Effective Date, it has taken all governmental necessary action on its part to authorize the execution and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing delivery of this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe performance of its obligations under this Agreement;
(e) its obligations hereunder are this Agreement has been duly executed and delivered on behalf of it, and constitutes a legal, valid and bindingvalid, binding obligation, enforceable against it in accordance with their respective termsthe terms hereof, subject to applicable bankruptcy or the general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws Laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawgenerally;
(f) no Event as of Defaultthe Effective Date, or Potential Event all necessary consents, approvals and authorizations of Default, has occurred all regulatory and is continuing, governmental authorities and none will occur as a result other Persons required to be obtained by it in connection with the execution and delivery of this Agreement and the performance of its entering into or performing obligations under this Agreement or any Transaction;have been obtained; and
(g) it is not relying upon any representations the execution and delivery of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions the performance of its obligations hereunder constitute “forward contracts” within the meaning do not conflict with any of United States Bankruptcy Code §101(26).
its contractual obligations (nexcept that Acorda makes no representation or warranty with respect to its obligations pursuant to Acorda Third Party Agreements) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit constitute a material fact that would otherwise make the information, document or statement misleading;default under any of its contractual obligations.
Appears in 2 contracts
Sources: Supply Agreement (Acorda Therapeutics Inc), Supply Agreement (Acorda Therapeutics Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to each of the other thatParties as follows and acknowledges that the other Parties are relying on such representations and warranties in connection with entering into this Agreement and consummating the Arrangement:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein do not and will not:
(i) result in the breach of, or violate any term or provision of, its articles or by-laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a material adverse effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgement, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a material adverse effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it or its assets;such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transaction contemplated herein have been obtained or submitted duly approved by it with respect to entering into its board of directors, and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Arrangement Agreement (Brookfield Asset Management Ltd.), Arrangement Agreement (Brookfield Asset Management Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the and in favour of each other Party that:
(a) it is duly organized incorporated, amalgamated or continued and is validly existing under the laws of the its governing jurisdiction of its incorporation or organization;
(b) it and has the corporate power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(cb) its except as disclosed in the Circular or in writing to the other Parties, the execution and performance delivery of this Agreement by it and the completion by it of the transactions contemplated herein and in the Tax Rulings and Rulings Applications do not and will not:
(i) result in the breach of, or violate any term or provision of, its articles or by-laws;
(ii) conflict with Applicable Lawwith, result in the breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, any provision of its constituent documentsagreement, instrument, license, permit or authority to which it is a party or by which it is bound, or to which any contract binding on assets of such Party are subject, or affecting it or result in the creation of any Encumbrance upon any of its assets under any such agreement or instrument, or give to others any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority, which in any case would have a Material Adverse Effect on it; or
(iii) violate any provisions of any Applicable Law or any judicial or administrative award, judgment, order or judgment decree applicable and known to it, the violation of any Governmental Authority applicable which would have a Material Adverse Effect on it;
(c) no dissolution, winding-up, bankruptcy, liquidation or similar proceeding has been commenced or is pending or, to it such Party’s knowledge, is proposed in respect of it, except as contemplated by the Plan of Arrangement, the Tax Rulings or its assets;the Rulings Applications; and
(d) all governmental the execution and other authorizations, approvals, consents, notices delivery of this Agreement and filings that are required to the completion of the transactions contemplated herein and in the Tax Rulings and Rulings Applications have been obtained or submitted duly approved by it with respect to entering into its board of directors, and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes a valid and binding, binding obligation of such Party enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy or similar bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless equity and limitations upon the enforcement of whether enforcement is sought in a proceeding in equity indemnification for fines or at penalties imposed by law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Arrangement Agreement (Encana Corp), Arrangement Agreement (Cenovus Energy Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (i) Each Party represents and warrants to the other Party as of the Third Restatement Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, (ii) each Transaction Entity and CRC represents and warrants to ▇▇▇▇ as of each CRC Joinder Effective Date and (iii) each Transaction Entity represents and warrants to ▇▇▇▇ as of each CRC Release Date, in each case, that:
17.1.1 (ai) it is an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, (ii) it is a “forward contract merchant” (as such term is defined in the Bankruptcy Code and used in Section 556 of the Bankruptcy Code) in respect of this Agreement and the other Safe Harbor Agreements and (iii) intends to be a “master netting agreement participant” for all purposes as such term is defined in section 101(38A) of the Bankruptcy Code and as used in Section 561 of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all material governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement and that could reasonably be expected to result in a Material Adverse Change;
17.1.8 it has entered into the Transaction Documents and will enter into any transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) it has not received from the other Party Transaction Documents and any assurancetransaction, guarantee or promise as to understands and accepts the expected or projected successterms, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderconditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder;
(l) there 17.1.10 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.11 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 2 contracts
Sources: Inventory Intermediation Agreement and Step Out Agreement (PBF Holding Co LLC), Inventory Intermediation Agreement (PBF Holding Co LLC)
Mutual Representations and Warranties. On Each of Lilly and Avidity represent and warrant, as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) 9.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates and/or Third Parties) to enable it to perform its obligations under this Agreement;
9.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
9.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 2 contracts
Sources: Research Collaboration and License Agreement (Avidity Biosciences, Inc.), Research Collaboration and License Agreement (Avidity Biosciences, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatParty that as of the Effective Date:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction of in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(b) it has the power full right and authority to enter into this Agreement and to perform all of its obligations hereunder;
(c) it has taken all necessary corporate action on its part required to authorize the execution and performance do not violate or conflict with Applicable Law, any provision delivery of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles the performance of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(md) it has taken all other action necessary to authorize such execution, delivery and performance as required by Applicable Law, its certificate of incorporation, by-laws or other organizational documents or any agreement to which it is a party or to which it may be subject;
(e) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(f) it is not a “forward contract merchant” within party to any agreement that would prevent it from granting the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party in connection with under this Agreement are trueor performing its obligations under this Agreement;
(g) neither the execution and delivery of this Agreement nor the performance hereof by it requires it to obtain any permits, accurate authorizations or consents from any governmental authority (other than any Regulatory Approvals) or from any other person, firm or corporation, and complete such execution, delivery and performance will not result in every material respect and do not omit the breach of or give rise to any right of termination, rescission, renegotiation or acceleration under, or trigger any other rights under, any agreement or contract to which it is a material fact party or to which it may be subject that would otherwise make relates to Affimed Background Technology in the informationcase of Affimed, document or statement misleadingto Artiva Background Technology in the case of ▇▇▇▇▇▇;
(h) [***];
(i) [***]; and
(j) to the best of its knowledge:
(i) [***]; and
(ii) [***].
Appears in 2 contracts
Sources: Collaboration Agreement (Artiva Biotherapeutics, Inc.), Collaboration Agreement (Artiva Biotherapeutics, Inc.)
Mutual Representations and Warranties. On the Effective Date AZ and on Company each Trade Daterepresents, each Party represents and warrants to the other Party, as of the Effective Date, and covenants to the other Party during the Term that:
(a) 12.1.1 it is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
(b) it has 12.1.2 the power execution and authority to enter into delivery of this Agreement and to perform each Project Schedule and the performance by it of the transactions contemplated hereby have been, or in the case of a Project Schedule, will be as of the Project Schedule Effective Date, duly authorized by all necessary corporate action on its obligations hereunderpart;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing 12.1.3 this Agreement have been obtained or submitted and are is, and, in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are the case of each Project Schedule, will be as of the Project Schedule Effective Date, a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding in equity at law or at lawequity);
(f) no Event 12.1.4 it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionthe applicable Project Schedule;
(g) 12.1.5 it has the right to grant the applicable rights and licenses provided for under this Agreement; and
12.1.6 neither it nor any of its Affiliates has been debarred or is not relying upon subject to debarment and neither it nor any representations of its Affiliates will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant to Section 306 of the other Party other than those expressly set forth herein, and it FFDCA or who is acting for its own account, and not as agent or the subject of a conviction described in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation such section. It agrees to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306, accurate and complete in every material respect and do not omit a material fact that would otherwise make or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 2 contracts
Sources: Master Collaboration Agreement (ArcherDX, Inc.), Master Collaboration Agreement (ArcherDX, Inc.)
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party Partners represents and warrants to the Partnership and the other thatPartner as follows:
(ai) it is a corporation duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of its incorporation or organization;
(b) and it has the corporate power and authority to enter into this Agreement and all of the Concurrent Documents to perform its obligations hereunderwhich it is a party and to carry out the transactions contemplated herein and therein;
(cii) the execution, delivery and performance of this Agreement and the Concurrent Documents to which it is a party have been duly authorized and no further corporate authorization is necessary on its part;
(iii) this Agreement and the Concurrent Documents to which it is a party are legally binding on and enforceable against it in accordance with the terms of such agreements;
(iv) the execution and performance do delivery of this Agreement and the Concurrent Documents to which it is a party does not, and the consummation by it of the transactions contemplated herein and therein shall not violate or conflict with Applicable Lawcause a default under or breach of (a) its articles of association, any provision memorandum of its constituent association or other charter or governing documents, or (b) any contract binding on or affecting it or any of its assets or any material judgment, court order or judgment of any Governmental Authority decree applicable to it or its assetsproperties and assets or (c) any material contract, agreement, indenture or other instrument to which it is a party or by which it or its property is bound;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fv) no Event of Defaultconsent, approval, authorization of, or Potential Event of Defaultdesignation, has occurred and is continuing, and none will occur as a result of its entering into declaration or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto filing with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or with any arbitrator that person not a party to this Agreement is likely required to materially adversely affect be obtained by it in connection with the ability valid execution, delivery and performance of either Party this Agreement and the Concurrent Document to perform its obligations hereunderwhich it is a party, other than those which have been obtained prior to the Effective Date;
(mvi) it is a “forward contract merchant” within there are no situations with respect to the meaning Partnership which involved or involves (A) the use of any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (B) the making of any direct or indirect unlawful payments to government officials or others from corporate funds or the establishment or maintenance of any unlawful or unrecorded funds, (C) the violation of any of the provisions of FCPA, or any rules or regulations promulgated thereunder of the United States Bankruptcy Code §101(26)States, and this Agreement and all Transactions hereunder constitute “forward contracts” within (D) the meaning receipt of United States Bankruptcy Code §101(26).any illegal discounts or rebated or any other violation of the antitrust laws or (E) any investigation by any Government Authority which could subject the other Parties to any damage or penalty in any civil, criminal or governmental litigation or proceeding or which would have an adverse effect on the Partnership or the Business; and
(nvii) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and Motorola represents that all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished rights in writing by or on behalf of it Israel to the Trademarks listed in Schedule 5.12 to the Purchase and Sale Agreement belong to Motorola or Motorola Israel Ltd. and are registered in their names. There are no licenses or other Party in connection third parties' rights with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;to said Trademarks.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ampal American Israel Corp /Ny/)
Mutual Representations and Warranties. On Licensor and the Effective Date and on Company each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, that:
(a) it is a corporation or company duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
(b) it has the power execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (i) such Party’s charter documents, bylaws or other organizational documents; (ii) in any material respect, any agreement, instrument or contractual obligation to perform its obligations hereunderwhich such Party is bound; (iii) any requirement of any Applicable Law; or (iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(c) this Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its execution terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance do not violate and general principles of equity (whether enforceability is considered a proceeding at law or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;equity); and
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by neither it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result nor any of its entering into Affiliates or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
directors (i) it has been debarred or is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable informationdebarment and neither it nor any of its Affiliates will use in any capacity, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with the services to be performed under this Agreement are trueAgreement, accurate any Person who has been debarred pursuant to Section 306 of the United States Food, Drug, and complete Cosmetic Act, as amended from time to time or who is the subject of a conviction described in every material respect such section, (ii) is designated on, or 50% or more owned or otherwise controlled by persons designated on, a Prohibited Party List; (iii) has been prohibited from contracting with or obtaining funding from U.S. federal government agencies; or (iv) has been convicted of any crime for which a Person could be so debarred or that is a felony listed among the exclusion authorities set forth on the U.S. Department of Health and do not omit a material fact that would otherwise make the informationHuman Services, document or statement misleading;Office of Inspector General website.
Appears in 1 contract
Mutual Representations and Warranties. On (a) Each of the Effective Date Parties, severally and on each Trade Datenot jointly, each Party represents and warrants to each other Party that the other that:following statements are true, correct, and complete as of the date hereof (or the date that a Transferee becomes a Party):
(ai) it is duly organized and validly existing and in good standing under the laws of the jurisdiction state of its incorporation organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or organizationother similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(bii) except as expressly provided in this Agreement or in the Bankruptcy Code (if applicable) or as may be required for disclosure by the Securities and Exchange Commission, no material consent or approval of, or any registration or filing with, any other Person is required for it to carry out the Restructuring contemplated by, and perform its obligations under, this Agreement;
(iii) except as expressly provided in this Agreement or the Bankruptcy Code (if applicable), it has the all requisite organizational power and authority to enter into this Agreement and to carry out the Restructuring contemplated by, and perform its obligations hereunderunder, this Agreement;
(civ) its the execution and delivery by it of this Agreement, and the performance do of its obligations hereunder, have been duly authorized by all necessary organizational action on its part;
(v) it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement; and
(vi) the execution, delivery, and performance by such Party of this Agreement does not and will not (1) violate or conflict with Applicable Law, any provision of its constituent documentslaw, rule, or any contract binding on or affecting regulation applicable to it or any of its assets subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, (2) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any material debt for borrowed money to which it or any order of its subsidiaries is a party, or judgment of (3) violate any Governmental Authority applicable to it order, writ, injunction, decree, statute, rule, or its assets;
regulation; provided that, (dx) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it the foregoing shall not apply with respect to entering into the Company on account of any defaults arising from the commencement of the Chapter 11 Cases or the pendency of the Restructuring and performing (y) for the avoidance of doubt, but without limiting the Company’s obligations pursuant to Section 5(b)(i) hereof, nothing in this Agreement have been obtained Section 6(a)(vi) shall, or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) shall be deemed to, waive, limit, or otherwise impair the Company’s ability to exercise its obligations hereunder are legalfiduciary duties as set forth by Section 20 hereof, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and but subject, as to enforceabilityin all events, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(fSection 20(b) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related hereof prior to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Petition Date.
(nb) it is an “eligible commercial entity”, The Caesars Parties represent and an “eligible contract participant” within warrant to the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12Restructuring Support Parties that there are no pending agreements (oral or written), respectivelyunderstandings, and all Transactions hereunder have been subject negotiations, or discussions with respect to individual negotiation by the Partiesany Alternative Proposal.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each Operating Company represents and warrants to the other Operating Company that, as of the Effective Date and continuing through the Term of this Agreement:
(a) it is duly organized organized, validly existing, and validly existing in good standing under the laws requirements of law of the jurisdiction of its incorporation organization or organizationformation and has all requisite power and authority to execute and enter into this Agreement;
(b) upon receipt of all necessary regulatory acceptances and approvals, as applicable, it has the power and authority all authorizations under all applicable requirements of Laws necessary for it to enter into this Agreement and to legally perform its obligations hereunder;and consummate the transactions contemplated hereunder or will obtain such authorizations in a timely manner prior to the time that performance by such Operating Company becomes due; ELECTRONICALLY FILED - 2022 March 11 3:45 PM - SCPSC - ND ND-2022-10-E - Page 39 of 59 Attachment 1
(c) its execution the execution, delivery, and performance do of this Agreement will not violate or conflict with Applicable Lawor violate any requirement of Laws or any contract, any provision of its constituent documentsagreement, or any contract binding on arrangement to which it is a party or affecting by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsis otherwise bound;
(d) upon receipt of all governmental necessary regulatory acceptances and other authorizations, approvals, consentsas applicable, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid valid, and binding, binding obligation of such Operating Company enforceable against it in accordance with their respective its terms, and such Operating Company has all rights necessary to perform its obligations to the other Operating Company in conformance with the terms and conditions of this Agreement, subject to applicable bankruptcy or similar laws bankruptcy, insolvency, reorganization, and other Laws affecting creditors’ rights generally and subject, as to enforceability, to equitable general principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawequity;
(fe) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction or not this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by or recommendations of the other PartyOperating Company in so doing, is capable of assessing the merits of this Agreement, and understands and accepts the terms, conditions, and risks of this Agreement for fair consideration on an arm’s-length basis;
(kf) no event of default, or any event that with notice or the passing of time or both would become an event of default, has occurred with respect to such Operating Company, and that such Operating Company is not bankrupt and there are no proceedings pending or being contemplated by it, or to its knowledge, threatened against it has not received from the other Party any assurance, guarantee which would result in it being or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;becoming bankrupt; ELECTRONICALLY FILED - 2022 March 11 3:45 PM - SCPSC - ND ND-2022-10-E - Page 40 of 59 Attachment 1
(lg) there is no pending pending, or to its knowledge knowledge, threatened litigation, arbitration legal proceedings at law or administrative proceeding before any Governmental Authority equity against it or any arbitrator affiliate that is likely to does or could materially adversely affect the its ability of either Party to perform its obligations hereunderunder this Agreement;
(mh) each person who executes this Agreement on behalf of such Operating Company has full and complete authority to do so, and that such Operating Company will be bound by such execution; and
(i) it is a “forward contract merchant” within will work together with the meaning other Operating Company to effectuate the purposes and goals of United States Bankruptcy Code §101(26), and this Agreement and take all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)actions reasonably necessary to that end, whether or not specifically set forth herein.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Decfm Agreement
Mutual Representations and Warranties. On the Effective Date Sirius and on IGO represent and warrant to each Trade Date, each Party represents and warrants other that (subject to the other that:fulfilment or waiver of any relevant Condition as applicable):
(a) (status) it is duly organized and validly existing a company limited by shares under the laws of the jurisdiction of its incorporation or organizationCorporations Act;
(b) (power) it has the full legal capacity and power to:
(i) own its property and authority to carry on its business; and
(ii) enter into this Agreement document and to perform carry out the transactions that this document contemplates in accordance with its obligations hereunderterms;
(c) (corporate authority) it has taken all corporate action that is necessary or desirable to authorise it entering into this document and carrying out the transactions that this document contemplates in accordance with its terms;
(d) (Authorisations) it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this document and to carry out the transactions that this document contemplates in accordance with its terms;
(ii) ensure that this document is legal, valid, binding and admissible in evidence; and
(iii) enable it to properly carry on its business, and it is complying with any conditions to which any such Authorisation is subject;
(e) (document effective) this document constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms;
(f) (no contravention) neither its execution and performance do not violate of this document nor the carrying out by it of the transactions that it contemplates in accordance with its terms, does or conflict with Applicable Law, will contravene:
(i) any provision of its constituent documents, or any contract binding on or affecting law to which it or any of its assets property is subject or any order or judgment of any Governmental Authority applicable to Government Agency that is binding on it or any of its assetsproperty;
(dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted any Authorisation held by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withit;
(eiii) any material undertaking or instrument binding on it or any of its property; or
(iv) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionconstitution;
(g) (no Insolvency Event) neither it nor any of its subsidiaries is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwiseaffected by an Insolvency Event;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and (not representative capacity) it is capable not entering into this document as trustee of assuming those risks;any trust or settlement or otherwise in a representative capacity; and
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related provided to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(oIndependent Expert) all applicable information, documents or statements that have been furnished in writing information provided by or on behalf of it to the other Party Independent Expert will be provided in connection with this Agreement are true, accurate good faith and complete on the understanding that the Independent Expert will rely on that information for the purpose of preparing the Independent Expert's Report for inclusion in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Scheme Booklet.
Appears in 1 contract
Sources: Scheme Implementation Deed
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;; 32 NTD: IPA Act Section 1-75(c)(1)(G)(iv)(3)(E)(iii): “Permission for the ability of a contract holder to substitute projects with other waitlisted projects without penalty should a project receive a non-binding estimate of costs to construct the interconnection facilities and any required distribution upgrades associated with that project of greater than 30 cents per watt AC of that project's nameplate capacity.”
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Sources: Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, except as provided in this Agreement:
(a) it is duly organized and validly existing under the laws formed in its place of the jurisdiction of its incorporation or organization;
(b) it is in good standing with respect to the filing of annual reports under the legislation under which it is incorporated or existing;
(c) it has the full legal capacity and power and authority to carry on its business, to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(cd) it has taken all corporate action necessary to authorize its execution entry into this Agreement and to perform its obligations under this Agreement;
(e) this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy, subject to laws generally affecting creditors’ rights and to principles of equity;
(f) the execution, delivery and performance do of this Agreement by it does not violate and will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Lawor result in a breach of or default under its constating documents, any material term or provision of its constituent documentsany undertaking, agreement, deed or security arrangement, or any contract binding on writ, order, injunction, judgment, law, rule or affecting regulation to which it is a party or is subject, or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transactionbound;
(g) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to the best of its knowledge, threatened against it is not relying upon any representations which, if adversely decided, could, in the reasonable opinion of the other Party other than those expressly set forth hereinParty’s management, and it is acting for have a material adverse effect on the Party’s business, assets or financial condition such as to materially impair its own account, and not as agent or in any other capacity, fiduciary or otherwiseability to perform its obligations under this Agreement;
(h) no liquidator, trustee in bankruptcy, receiver, receiver manager or other external administrator is currently appointed in relation to it has entered hereinto with a full understanding or any of the material terms and risks of the same, and it is capable of assuming those risks;its property; and
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions best of its knowledge, there are no facts, matters or circumstances which give any Transaction will not be considered investment advice or a recommendation Person the right to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending appoint or to its knowledge threatened litigationapply to appoint (as the case may be) a liquidator, arbitration trustee in bankruptcy, receiver, receiver manager or administrative proceeding before any Governmental Authority other external administrator to it or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)property.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party, as of the date of this Agreement and as of each Delivery of the Contract RECs and payment in respect of the Purchase Price that:
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organizationand, if relevant under such laws, in good standing;
(b) it It has the corporate authority and power to execute, deliver and authority to perform the Agreement and enter into this Agreement and to perform its obligations hereunderany transaction contemplated hereby;
(c) its execution Such execution, delivery and performance of this Agreement have been duly authorized and do not violate or conflict with Applicable Lawany law applicable to it, any provision of its constituent constitutional documents, any order or judgment of any court or other agency of government applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizationsThere is no pending or (to its knowledge) threatened litigation, approvals, consents, notices and filings arbitration or administrative proceeding that are required materially adversely affects its ability to have been obtained or submitted by it with respect to entering into and performing perform under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;Agreement.
(e) its obligations hereunder are legal, valid and binding, enforceable It is an “Eligible Contract Participant” as defined in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjectSection 1a(18) of the Commodity Exchange Act, as to enforceabilityamended, to equitable principles 7 U.S.C. § 1a(18), and it is a “forward contract merchant” and this Agreement is a “forward contract” within the meaning of general application regardless of whether enforcement is sought in a proceeding in equity or at law;the United States Bankruptcy Code.
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it It is not relying upon any advice, reports, analyses, or representations of the other Party other than those expressly set forth hereinin this Agreement or any written guarantee of the obligations of such other Party, and the other Party has not given to it any assurance or guarantee as to the expected financial performance or result of this transaction, and it is acting has entered into this transaction as principal and for its own account, account (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto ), with a full understanding of of, and the ability to assume, the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it (including regarding the suitability thereof) based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)necessary.
(ng) it is an “eligible commercial entity”This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to bankruptcy, reorganization, and an “eligible contract participant” within the meaning similar laws affecting creditors’ rights generally and to general principals of United States Commodity Exchange Act §§1a(11) and 1a(12equity (regardless whether considered in a proceeding in equity or at law), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Purchase and Sale Agreement
Mutual Representations and Warranties. On Each of the Effective Date Parties, severally and on each Trade Datenot jointly, each Party represents and warrants to each other Party that, as of the other thatdate such Party executes this Agreement or a Joinder, as applicable:
(a) it is duly organized and validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it , and has the power and all requisite corporate, partnership, limited liability company or similar authority to enter into this Agreement and to carry out the transactions contemplated hereby and perform its obligations contemplated hereunder, and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, partnership, limited liability company, or other similar action;
(b) this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(c) except as expressly provided in this Agreement, the Plan, and the Bankruptcy Code, if applicable, no consent or approval is required by any other Person or Entity in order for it to effectuate the Restructuring Transactions contemplated by, and perform its execution and performance do not violate or conflict with Applicable Lawrespective obligations under, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsthis Agreement;
(d) all governmental the execution, delivery, and performance of such Party of this Agreement do not, and will not (i) violate (A) any provision of any Law or regulations applicable to it or (B) its articles of association, memorandum of association, charter, bylaws, or other authorizationsgoverning documents or (ii) conflict with or constitute a breach of or default (without notice or lapse of time, approvalsor both) under, consentsor give rise to a right of termination, notices modification, or cancellation of any obligation under any material contractual obligation to which it is a party, except in the case of clause (i)(A) and filings that are required to have been obtained or submitted by it (ii)(Y) with respect to entering into Company Parties, as would not reasonably be expected to have a material adverse effect on Company Parties, taken as a whole, and performing this Agreement have been obtained (Z) with respect to any other Party, as would not reasonably be expected to prevent or submitted and are in full force and effect and all conditions thereof have been complied withmaterially impair, alter, or delay the ability of such Party to consummate the transactions contemplated hereby;
(e) to its obligations hereunder are legalknowledge, valid and bindingno facts or circumstances, enforceable in accordance including with their respective termsrespect to any pending or threatened legal actions, subject exist that would be reasonably expected to applicable bankruptcy impair or similar laws affecting creditors’ rights generally and subject, as delay the ability of such Party to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;consummate the Restructuring Transactions; and
(f) no Event of Defaultexcept as expressly provided by this Agreement, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon party to any representations of restructuring or similar agreements or arrangements with the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation Parties to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have not been furnished in writing by or on behalf of it disclosed to the other Party in connection with all Parties to this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party parties represents and warrants to and in favour of each of the other thatparties as follows and acknowledges that each of the other parties is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) it has been duly formed and is duly organized and validly existing under the laws of the its jurisdiction of incorporation and has all necessary corporate power, authority and capacity to own its incorporation or organizationproperty and assets and to carry on its business as conducted at present;
(b) it has the corporate capacity and power and authority to enter into this Agreement and and, subject to obtaining the requisite approvals contemplated hereby, to perform its obligations hereunder;
(c) its the execution and performance do not violate or conflict with Applicable Law, any provision delivery of this Agreement and the completion of the transactions contemplated hereby to which it is a party have been duly approved by its constituent documents, or any contract binding on or affecting it or any board of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsdirectors;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted constitutes a valid and are binding obligation of it, enforceable against it in full force accordance with its terms, subject to the availability of equitable remedies and effect and all conditions thereof have been complied withlaws affecting the enforceability of creditors' rights generally;
(e) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby will not result in a violation or breach of or default under any of the terms and provisions of its obligations hereunder are legalarticles or by-laws or any indenture or another agreement or instrument, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy written or similar laws affecting creditors’ rights generally and subject, as to enforceabilityoral, to equitable principles which it is a party or by which it is bound or result in the creation of general application regardless any lien, charge or encumbrance upon any of whether enforcement is sought in its material assets under such agreement or instrument and do not breach any provisions of any law or administrative regulation or any judicial or administrative award, judgement or decree applicable to it, the breach of which would have a proceeding in equity or at lawmaterial adverse effect on it;
(f) no Event the information (including the financial information) set forth in the Circular relating to it and its subsidiaries and other interests, their respective businesses and properties and the effect of Defaultthe Amalgamation thereon is true, correct and complete in all material respects as at the date as of which such information is given and does not contain any untrue statement of a material fact or Potential Event omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;the circumstances in which they were made; and
(g) there are no actions, suits, proceedings or investigations commenced, contemplated or threatened against or affecting it is not relying upon at law or in equity, before or by any representations governmental department, commission, board, bureau, court, agency, arbitrator or instrumentality, domestic or foreign, of any kind nor are there any existing facts or conditions which may reasonably be expected to be a proper basis for any actions, suits, proceedings or investigations which, in any case, would prevent or hinder the consummation of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed transactions contemplated by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Amalgamation Agreement (Enviro Industrial Technologies Inc)
Mutual Representations and Warranties. On (a) CryoCor hereby represents and warrants as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) a duly and validly organized and existing corporation in good standing under the laws of the other Party as investment advice or state of Delaware, and that it is qualified to do business as a recommendation foreign corporation in each jurisdiction in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to enter into do so would not have a transactionmaterial adverse effect on CryoCor or its business,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach, conflict or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken to authorize the execution, delivery, and understands that information performance of this Agreement by it, and explanations related to this Agreement constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the terms and conditions rights of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;creditors generally, and
(jiv) it has made is not a party to any litigation relating to, or that could reasonably be expected to adversely affect, its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;under this Agreement.
(mb) Each of BSC and BSS hereby represents and warrants as of the Effective Date that:
(i) it is a “forward contract merchant” within duly and validly organized and existing corporation in good standing under the meaning laws of United States Bankruptcy Code §101(26)its jurisdiction of incorporation, and that it is qualified to do business as a foreign corporation in each jurisdiction in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on it or its business,
(ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of, or constitute a default under, its Certificate of Incorporation or By-Laws, or other organizational documents, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject,
(iii) all requisite corporate action has been taken to authorize the execution, delivery, and performance of this Agreement by it, and this Agreement and all Transactions hereunder constitute “forward contracts” within constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the meaning rights of United States Bankruptcy Code §101(26).creditors generally, and
(niv) it is an “eligible commercial entity”not a party to any litigation relating to, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12)or that could reasonably be expected to adversely affect, respectively, and all Transactions hereunder have been subject its ability to individual negotiation by the Partiesperform its obligations under this Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date Each of Celsion and on each Trade Date, each Party BSC hereby represents and warrants to the other thatas of the date hereof as follows:
(a) it is the execution, delivery and performance of this Agreement by such party have been duly organized and validly existing under authorized by all necessary action on the laws part of the jurisdiction of its incorporation or organizationsuch party;
(b) it has the power and authority to enter into this Agreement has been duly executed and delivered by such party and, assuming due authorization, execution and delivery by the other party, constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, subject to perform its obligations hereunder(i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws relating to or affecting the rights of creditors generally (including, without limitation, fraudulent conveyance laws) and (ii) the exercise of judicial discretion in accordance with general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, or injunctive relief;
(c) its execution such party's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby do not violate or and will not (i) violate, conflict with Applicable Law, or result in the breach of any provision of the certificate of incorporation or by-laws of such party, (ii) conflict with or violate any Law or governmental order applicable to such party or its constituent documentsassets, properties or businesses, or (iii) conflict with, result in any contract binding breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any encumbrance on any of its outstanding shares of common stock or affecting it preferred stock or any of its the assets or properties of such party pursuant to, any order note, bond, mortgage or judgment indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party or by which any of such party's shares of common stock or preferred stock or any Governmental Authority applicable to it of the party's assets or its assets;properties is bound or affected; and
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon a party to any representations of the other Party other than those expressly set forth hereinlitigation relating to, and it is acting for or that could reasonably be expected to affect, its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and under this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that:
(a) (status) it is and each of its subsidiaries are duly organized and validly existing under the laws of incorporated in the jurisdiction of its incorporation or organizationregistration;
(b) (power) it has the power full legal capacity and authority power:
(i) to own its property and to carry on its business; and
(ii) to enter into this Agreement deed and to perform its obligations hereundercarry out the transactions that it contemplates;
(c) (corporate authority) it has taken all corporate action that is necessary or desirable to authorise its entry into this deed and its carrying out the transactions that it contemplates;
(d) (Authorisations) it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this deed and to carry out the transactions that it contemplates;
(ii) ensure that this deed is legal, valid, binding and admissible in evidence; or
(iii) enable it to properly carry on its business as it is now being conducted, and it is complying with any conditions to which any of these Authorisations is subject;
(e) (document effective) this deed constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors' rights generally), subject to any necessary stamping or registration; and
(f) (no contravention) neither its execution and performance do not violate of this deed nor the carrying out by it of the transactions that it contemplates, does or conflict with Applicable Law, will:
(i) contravene any provision of its constituent documents, or any contract binding on or affecting law to which it or any of its assets property is subject or any order or judgment of any Governmental Authority applicable to Government Agency that is binding on it or any of its assetsproperty;
(dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withcontravene any Authorisation;
(eiii) contravene any undertaking or instrument binding on it or any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawproperty;
(fiv) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of contravene its entering into or performing this Agreement or any Transaction;constitution; or
(gv) require it is not relying upon to make any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent payment or delivery in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions respect of any Transaction will not be considered investment advice financial accommodation or a recommendation to enter into that Transaction;
(j) financial instrument before it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;be obliged to do so.
Appears in 1 contract
Sources: Share Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, that:
17.1.1 it is (aA) an “eligible commercial entity” and an “eligible contract participant” as defined in Sections 1a(11) and 1a(12) of the U.S. Commodity Exchange Act, as amended, and (B) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunderunder this Agreement, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with any Applicable LawLaw in any material respect, any provision of its constituent constitutional documents, order or judgment of any court or Governmental Authority or, in any material respect, any of its assets or any contract contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) 17.1.4 all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect effect, and all conditions thereof of this Agreement have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with, in all material respects;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement;
(g) 17.1.8 it is not relying upon any representations of the any other Party other than those expressly set forth herein, in this Agreement;
17.1.9 it has entered into the Transaction Documents and it is acting for its own account, will enter into any transaction thereunder as principal (and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.10 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction, and is capable of assuming, and assumes, the risks of the Transaction Documents and any transactions contemplated thereunder; and it has not received from is capable of assuming those risks;
17.1.11 the other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any assurance, similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee or promise as to the expected performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderresult of this Agreement;
(l) there 17.1.12 it is no pending not bound by any agreement that would preclude or to hinder its knowledge threatened litigationexecution, arbitration delivery, or administrative proceeding before performance of any Governmental Authority or any arbitrator that is likely to materially adversely affect of the ability of either Party to perform its obligations hereunderTransaction Documents;
(m) 17.1.13 neither it is a “forward contract merchant” within the meaning nor any of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have its Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.14 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 1 contract
Mutual Representations and Warranties. 62 NTD: LTRRPP Section 6.16.1: “If the amount of collateral held for an Approved Vendor is insufficient to compensate the utility, the Approved Vendor will be required to pay the utility for the balance of the value of the undelivered RECs from that previous year.” On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable LawLawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactiontransactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction transactionTransaction and as to whether such transaction transactionTransaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).);
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Sources: Master Renewable Energy Certificate Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date MedImmune and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date and, with respect to subsection (d) below, covenants, that:
(ai) it It is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
(bii) it has the power The execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (a) such Party’s charter documents, bylaws or other organizational documents; (b) in any material respect, any agreement, instrument or contractual obligation to perform its obligations hereunderwhich such Party is bound; (c) any requirement of any Applicable Law; or (d) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(ciii) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this This Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding in equity at law or at lawequity);
(fiv) no Event It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations that would impede the diligent and complete fulfillment of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;; and
(mv) Neither it nor any of its Affiliates has been debarred or is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the Parties.
(o) all applicable informationservices to be performed under this Agreement, documents any Person who has been debarred pursuant to Section 306 of the FFDCA or statements that have been furnished who is the subject of a conviction described in writing by or on behalf of it to such section. It will inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ Knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Sources: Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On As of the Effective Date and on each Trade DateDelivery, each Party represents and warrants to the other Party that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) : it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do of this Agreement does not violate or conflict with Applicable Law, any provision of its constituent constating documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjectand, as to enforceabilityin the case of the Province, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) the Crown Proceeding Act, R.S.B.C. 1996, c. 89; no Event of Default, or Potential Event of Default, Default has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) ; it is not relying upon any representations of the other Party other than those expressly set forth herein, and in relation to the transactions contemplated in this Agreement, it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with , on behalf of a full understanding Third Party, except, in respect of the material terms Province, acting to acquire Offset Units to transfer to or retire on behalf of Third Parties; and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the its ability of either Party to perform its obligations hereunder;
(m) under this Agreement. As of the Effective Date and each Delivery, Vendor represents and warrants to the Province that: it is a “forward contract merchant” within duly organized and validly existing under the meaning laws of United States Bankruptcy Code §101(26), and this Agreement and the jurisdiction of its incorporation or organization; all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it Vendor to the other Party Province, the Validation Provider, the Verification Provider, or any combination thereof, in connection with this Agreement Agreement, the validation or acceptance of the Project Plan for the Project, the generation or verification of Project Reductions, and the issuance of Project Offset Units, are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the informationrespect; there is no pending, document or statement misleading;to Vendor’s knowledge threatened, claim, litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator:
Appears in 1 contract
Sources: Offset Purchase Agreement
Mutual Representations and Warranties. On the Effective Date Each of Licensee and on each Trade Date, each Party Akebia hereby represents and warrants to the other thatParty as of the Effective Date:
(a) it It is a corporation or entity duly organized and validly existing under the laws of the state, municipality, provinces, administrative division, or other jurisdiction of its incorporation or organization;
formation; and (b) it has full power and authority and the legal right to own and operate property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement.
12.1.2 The execution, delivery, and performance of this Agreement by it has been duly authorized by all requisite corporate action.
12.1.3 This Agreement has been duly executed and delivered on behalf of such Party and constitutes a legal, valid, and binding obligation of such Party and is enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity.
12.1.4 It has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder;, and such performance does not conflict with or constitute a breach of any of its agreements with Third Parties.
(c) its 12.1.5 The execution and delivery of this Agreement and the performance of its obligations hereunder (a) do not violate or conflict with or violate any requirement of Applicable Law, Law or any provision of its constituent documentsarticles of incorporation, bylaws, limited partnership agreement, or any contract binding on similar instrument, as applicable, in any material way, and (b) do not conflict with, violate, or affecting it breach or constitute a default or require any consent under, any Applicable Law or any contractual obligation or court or administrative order by which it is bound.
12.1.6 It has not been debarred or suspended under 21 U.S.C. §335(a) or (b), is not the subject of its assets a conviction described in Section 306 of the FD&C Act, has not been and is not excluded from a federal or governmental health care program, debarred from federal contracting, convicted of or pled nolo contendere to any order felony, or judgment to any federal or state legal violation (including misdemeanors) relating to prescription drug products or fraud, is not subject to OFAC sanctions or on the OFAC list of specially designated nationals, and is not subject to any similar sanction of any Governmental Authority applicable to it or its assets;
in the Territory (d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26Debarred/Excluded”), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) no proceeding that could result in it being Debarred/Excluded is an “eligible commercial entity”pending, and an “eligible contract participant” within neither it nor any of its Affiliates has used, in any capacity in the meaning performance of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it obligations relating to the Licensed Product, any employee, subcontractor, consultant, agent, representative, or other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;person who has been Debarred/Excluded.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that:party that (subject to obtaining any relevant Regulatory Approvals):
(a) (Status): it is duly organized and validly existing a company limited by shares under the laws of the jurisdiction of its incorporation or organizationCorporations Act;
(b) (Power): it has the full legal capacity and power to:
(i) own its property and authority to carry on its business; and
(ii) enter into this Agreement document and subject to perform its obligations hereunderthe satisfaction of the Conditions to carry out the transactions that this document contemplates;
(c) (Corporate authority): it has taken all corporate action that is necessary or desirable to authorise its entry into this document and subject to the satisfaction of the Conditions to carry out the transactions that this document contemplates;
(d) (Authorisations): it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this document and subject to the satisfaction of the Conditions to carry out the transactions that this document contemplates;
(ii) ensure that this document is legal, valid, binding and admissible in evidence; and
(iii) enable it to properly carry on its business, and it is complying with any conditions to which any Authorisation is subject;
(e) (Document effective): this document constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms;
(f) (No contravention): neither its execution and performance do not violate of this document nor the carrying out by it of the transactions that it contemplates, does or conflict with Applicable Law, will:
(i) contravene any provision of its constituent documents, or any contract binding on or affecting law to which it or any of its assets property is subject or any order or judgment of any Governmental Authority applicable to Government Agency that is binding on it or any of its assetsproperty;
(dii) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withcontravene any Authorisation;
(eiii) contravene any undertaking or instrument binding on it or any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;property; or
(fiv) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of contravene its entering into or performing this Agreement or any Transactionconstitution;
(g) it is not relying upon any representations (No litigation): otherwise than as disclosed in writing to each other prior to the date of the other Party other than those expressly set forth hereinthis Agreement, no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or to its knowledge, threatened which, if adversely decided, could have, for Gindalbie a Gindalbie Material Adverse Change and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwiseSundance a Sundance Material Adverse Change;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and (No Insolvency Event): it is capable of assuming those risks;not affected by an Insolvency Event; and
(i) (Not representative): it is not relying on any communication (written or oral) of the other Party as investment advice or as entering into this document in a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)representative capacity.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Merger Implementation Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Dateof this Agreement, each Party represents and warrants to the other Party that:
(a) it It is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationformation;
(b) It has all regulatory authorizations necessary for it has the power and authority to enter into this Agreement and to legally perform its obligations hereunderunder this Agreement (other than permits or regulatory authorizations to be obtained by Seller for the construction, operation or maintenance of the Facility, which Seller reasonably anticipates it will be able to obtain in due course);
(c) its execution The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate or conflict with Applicable Lawany of the terms and conditions in its governing documents, any provision of its constituent documents, contracts to which it is a party or any contract law, rule, regulation, order or the like applicable to it, and the Agreement constitutes its legally valid and binding on obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses.
(d) It is not Bankrupt and there are no proceedings pending or affecting being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;
(e) There is not pending or, to its knowledge, threatened against it or any of its assets or Affiliates any order or judgment of any Governmental Authority applicable legal proceedings that could materially adversely affect its ability to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) perform its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement;
(f) no No Event of Default, Default or Potential Event of Default, Default with respect to it has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it It is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each transaction this Agreement and as to whether such transaction this Agreement is appropriate or proper for it based upon its own judgment and any judgment, is not relying upon the advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by or recommendations of the other PartyParty in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement;
(kh) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it It is a “"forward contract merchant” " within the meaning of the United States Bankruptcy Code §101(26), and Code; and
(i) It has entered into this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate the conduct of its business and complete it has the capacity or ability to make or take delivery of all Product referred to in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Sources: Power Purchase Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other thatParties that on the effective date of this Joint Venture Contract:
(a) it It is an independent legal entity duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation establishment or organizationincorporation;
(b) It has obtained all consents and approvals and taken all actions necessary for it to validly enter into and give effect to this Contract and it has the power and full authority to enter into this Agreement Contract and to perform its obligations hereunder;
(c) It duly authorized its execution legal representative to sign on this Contract, and performance do not violate or conflict with Applicable Lawfrom and after the Effective Date, any provision the provisions of its constituent documentsthis Contract shall constitute valid, or any contract lawful and legally binding on or affecting it or any obligations of its assets or any order or judgment of any Governmental Authority applicable to it or its assetssuch Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to No steps have been obtained taken or submitted by it with legal proceedings commenced or threatened against such Party for winding-up or bankruptcy or insolvent or for a liquidation committee or administrator to be appointed in respect to entering into and performing this Agreement have been obtained of its assets or submitted and are in full force and effect and all conditions thereof have been complied withbusiness;
(e) Its execution of this Contract and its performance of its obligations hereunder are legalhereunder: (i) will not violate any provision of its business license, valid and bindingarticles of incorporation, enforceable in accordance with their respective terms, subject to applicable bankruptcy articles of association or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought organizational documents; (ii) will not violate any Applicable Laws or any governmental authorization or approval; (iii) will not violate or result in a proceeding in equity default or at lawbreach under any other contract or agreement to which it is a party or any unilateral commitment or undertaking which binds it or give any third party a right to take action against such Party or the other Parties; and (iv) will not violate any judgment or arbitration award of any tribunal to which it is subject or the order or ruling of any government or regulatory body to whose jurisdiction it is subject;
(f) no Event of DefaultNo lawsuit, arbitration or Potential Event of Defaultother legal or governmental proceeding is pending or, has occurred and is continuingto its knowledge, and none will occur as a result of threatened against it that would affect its entering into or performing ability to perform its obligations under this Agreement or any Transaction;Contract; and
(g) it is not relying upon any representations of It has disclosed to the other Party other than those expressly set forth hereinParties all documents issued by any governmental department that may have a material adverse effect on its ability to fully perform its obligations under this Contract, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party the Parties to perform its obligations hereunder;
(m) it is a “forward contract merchant” within realize the meaning objectives of United States Bankruptcy Code §101(26), the Company and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation documents previously provided by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a contain any falsehoods, untruths, misstatements or omissions of material fact that would otherwise make the information, document or statement misleading;facts.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Effective Date:
(a) it 10.1.1 It is duly organized and validly existing under the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it and has the power full power, authority and authority right to enter into this Agreement and to perform its obligations hereunderhereunder in accordance with the terms and conditions hereof, and all requisite corporate action has been taken to authorize its execution, delivery and performance of this Agreement;
(c) its execution 10.1.2 The execution, delivery and performance do of this Agreement by it does not violate breach, violate, conflict with, contravene or conflict with Applicable Law, any provision of constitute a default under its constituent charter documents, bylaws or other organization documents or any contract binding on contract, arrangement or affecting commitment to which it is a party or by which it is bound, or violate any statute, law or regulation or any of its assets court or any order or judgment of any Governmental Authority applicable to it or its assetsBody having jurisdiction over such Party;
10.1.3 This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (d) all governmental and other authorizations, approvals, whether enforceability is considered a proceeding at law or equity);
10.1.4 All consents, notices approvals and filings that are authorizations from all Governmental Bodies or other Third Parties required to have been be obtained or submitted by it in connection with respect to entering into the execution, delivery and performing performance of this Agreement have been obtained obtained; and
10.1.5 Neither it, nor any of its officers or submitted employees, nor to its knowledge, any of its agents and are in full force contractors, is a Sanctioned Person, and effect neither it nor any of its officers, employees, nor to its knowledge, any of its agents, and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Defaultcontractors, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or engaged in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact conduct that would otherwise make the information, document or statement misleading;reasonably be expected to result in such person being a Sanctioned Person.
Appears in 1 contract
Sources: License and Development Agreement (Cartesian Therapeutics, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other thatParty as follows:
(a) it 9.1.1. It is a corporation duly organized and validly existing under the laws law of the jurisdiction of its incorporation or organizationin which it is incorporated;
(b) it 9.1.2. It has the corporate and legal right, title, power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 9.1.3. It has all necessary corporate and any other approvals for execution, delivery and performance of this Agreement;
9.1.4. Upon execution and performance do not violate or conflict with Applicable Lawdelivery, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, shall constitute a valid and bindingbinding obligation of it, enforceable in accordance with their respective its terms, subject to except as enforceability may be limited by applicable bankruptcy bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and subject, except as enforceability may be subject to enforceability, to equitable general principles of general application equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law), to the extent that these laws cannot be and are not contracted out by the terms of this Agreement;
(f) no Event 9.1.5. The execution, delivery and performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement will not conflict in any way with the terms of any other agreement or instrument to which it is or becomes a party or by which it is or becomes bound, nor violate any Transactionlaw or regulation or decision of any court, governmental body or administrative or other agency having authority over it;
(g) it is not relying upon any representations of the other 9.1.6. The persons executing this Agreement on its behalf are duly authorized to do so and by so doing have bound such Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it this Agreement; and [***] Certain information in this document has made its own independent trading been omitted and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as submitted separately to the expected Securities and Exchange Commission. Confidential treatment has been requested separately with respect to the omitted portions.
9.1.7. There is no action, suit, investigation or projected successproceeding pending against, profitabilityor to its knowledge, returnthreatened against or affecting it before any court, performancearbitrator or any governmental authority, resultincluding but not limited to regulatory authorities, effectthat in any manner challenges or seeks to prevent, consequence enjoin, alter or benefit (either economicmaterially delay the contemplated transactions, legaland, regulatoryto its knowledge, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending reasonably valid basis for any such action, suit investigation or proceeding to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)be brought.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party hereto that:
(a) If it is a body corporate, that it is duly incorporated or continued and duly organized and validly existing subsisting under the laws of its organizational jurisdiction, or in the jurisdiction case of its incorporation or organizationthe Optionors, is an individual of legal age;
(b) it has the full right, power and authority to carry on its business and to enter into and accept the terms of this Agreement and to perform carry out the transactions contemplated herein, and in the case of the Optionors, has the legal capacity and competence to enter into and execute this Agreement;
(c) it has duly obtained all necessary governmental, corporate, shareholder and other authorizations for its execution and performance of this Agreement,
(d) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein will, with the giving of notice or the passage of time, or both, conflict with, result in the breach of, constitute a default under, or result in the creation of any encumbrances on its assets under the terms or provisions of any law applicable to it or accelerate the performance required by, its constating documents, any resolution of its directors or shareholders, as applicable, or any indenture, agreement or other instrument to which it is a party or by which it or its assets may be bound;
(e) the execution and delivery of this Agreement does not violate or result in the breach of the laws of any jurisdiction applicable to a Party or pertaining thereto or of its organizational documents, as applicable;
(f) in the case of the Optionee, all corporate authorizations have been obtained for the execution of this Agreement and for the performance of its obligations hereunder;
(cg) its execution no proceedings are pending for and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment no Party is aware of any Governmental Authority applicable basis for the institution of any proceedings leading to it the dissolution or its assets;winding-up of such Party or the placing of such Party into bankruptcy or subject to any other laws governing the affairs of insolvent persons; and
(dh) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are constitutes a legal, valid and binding, binding obligation of the Party enforceable against it in accordance with their respective termsits terms except as enforcement thereof may be limited by bankruptcy, subject to applicable bankruptcy insolvency or similar other laws affecting the enforcement of creditors’ ' rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related subject to the terms and conditions qualification that equitable remedies may only be granted in the discretion of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability court of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)competent jurisdiction.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Option Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party as of the Second Restatement Effective Date, and shall be deemed to represent and warrant as of the date of any purchase of Product hereunder, that:
17.1.1 it is (ai) an “eligible contract participant” as defined in the U.S. Commodity Exchange Act, as amended, and (ii) a “forward contract merchant” under section 101(26) and a “master netting agreement participant” under section 101(38B), for purposes of the Bankruptcy Code;
17.1.2 it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organization;
(b) it and, if relevant under such laws, in good standing, has the power to execute and authority to enter into deliver this Agreement and any other related documentation that it is required by this Agreement to deliver and to perform its obligations hereunder;under this Agreement, and has taken all necessary action to authorize such execution, delivery and performance; ny-1739899
(c) its execution 17.1.3 such execution, delivery and performance do not violate or conflict with with, in any material respect, any Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets constitutional documents or any order or judgment of any court or Governmental Authority applicable to it or its assetsAuthority;
(d) 17.1.4 all material governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied witheffect;
(e) 17.1.5 its obligations hereunder are under this Agreement constitute its legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(f) 17.1.6 no Termination Event of Default, or Potential Event of Default, has occurred and is continuing, and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
17.1.7 there is not pending, nor to its knowledge threatened against it, any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations under this Agreement and that could reasonably be expected to result in a Material Adverse Change;
17.1.8 it has entered into the Transaction Documents and will enter into any transaction thereunder as principal (g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent advisor, agent, broker or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto and with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions decision to enter into each the Transaction Documents and any transaction and as to whether such the Transaction Documents and any transaction is are appropriate or proper suitable for it based upon its own judgment and any upon advice from such advisors advisers as it has deemed necessary and not in reliance upon any view expressed by the any other Party;
17.1.9 it is capable of assessing the merits of and understanding (kon its own behalf or through independent professional advice) the Transaction Documents and any transaction, understands and accepts the terms, conditions and risks of the Transaction Documents and any transaction and is capable of assuming and assumes the risks of the Transaction Documents and any transactions contemplated thereunder; ny-1739899
17.1.10 it has is not received from bound by any agreement that would preclude or hinder its execution, delivery or performance of any of the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunderTransaction Documents;
(l) there is no pending or to 17.1.11 neither it nor any of its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have Affiliates has been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing contacted by or on behalf of it to the negotiated with any finder, broker or other Party intermediary in connection with this Agreement are truethe sale of Product hereunder who is entitled to any compensation with respect thereto; and
17.1.12 none of its directors, accurate and complete officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in every material respect and do not omit a material fact that would otherwise make connection with any of the information, document or statement misleading;Transaction Documents.
Appears in 1 contract
Sources: Inventory Intermediation Agreement (PBF Energy Co LLC)
Mutual Representations and Warranties. On As of the Effective Date and on each Trade Date, each Party represents of Solvay and CV Therapeutics hereby represents, warrants and covenants to the other Party hereto that:
(a) it is a corporation or entity duly organized and validly existing under the laws of the State or other jurisdiction of its incorporation or organizationformation;
(b) the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action and does not require any shareholder action or approval;
(c) it has the power and authority to enter into execute and deliver this Agreement and to perform its obligations hereunder;
(cd) its execution the execution, delivery and performance do by such Party of this Agreement and its compliance with the terms and provisions hereof does not violate or and will not conflict with Applicable Lawor result in a breach of any of the terms and provisions of or constitute a default under (i) a loan agreement, any provision of its constituent documentsguaranty, financing agreement, agreement affecting a product or any contract other agreement or instrument binding on or affecting it or its property; (ii) the provisions of its charter or operative documents or bylaws; (iii) any order, writ, injunction or decree of any court or governmental authority entered against it or by which any of its assets property is bound, or (iv) in the case of Solvay, any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withthe Interested Party Agreements;
(e) it shall at all times comply with all applicable laws and regulations relating to its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;activities under this Agreement; and
(f) no Event during the Term, it and its Affiliates shall not, Market, Promote or sell the Product in violation of Defaultapplicable laws, or Potential Event regulations and professional requirements in the Territory, including but not limited to all Federal and State Medicare and Medicaid anti-kickback statutes and regulations, the PDMA and regulations thereunder, the FD&C Act and regulations thereunder, HIPAA, FDA regulations and guidelines concerning the advertising of Defaultprescription drug products, has occurred and is continuingthe American Medical Association’s Guidelines on Gifts to Physicians, the PhRMA Code on Interactions with Health Care Professionals, and none will occur as a result the ACCME Standards for Commercial Support of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinContinuing Medical Education, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)approved updates thereto.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Effective Date:
(a) it is a body corporate duly incorporated and organized and validly existing subsisting under the laws of the jurisdiction of its incorporation or organizationorganizational jurisdiction;
(b) it has the full power and authority to carry on its business and to enter into this Agreement Agreement, subject to the receipt by ABG of all required approvals, consents and acceptances, including the approval of the TSX, and to perform its obligations hereunderthe receipt by SGC of all required approvals, consents and acceptances, including the approval of the TSXV, as herein contemplated;
(c) its the execution and performance do delivery of this Agreement and the consummation of the transactions contemplated by this Agreement does not violate and will not conflict with, constitute a default under, result in a breach of, entitle any person to a right of termination under, or conflict with Applicable Lawresult in the creation or imposition of any Encumbrance or restriction of any nature whatsoever upon or against the Party's property or assets, under its constating documents, any provision contract, agreement, indenture or other instrument to which it is a party or by which it is bound, any law, judgment, order, writ, injunction or decree of its constituent documentsany court, administrative agency or other tribunal or any contract binding on or affecting it or any of its assets or any order or judgment regulation of any Governmental Authority governmental authority applicable to it or its assetsthe Party;
(d) all governmental internal actions necessary to authorize a Party to enter into this Agreement, and other authorizationsto authorize its representative whose signature is affixed hereto to sign this Agreement and to bind such Party thereby, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withtaken;
(e) its obligations hereunder are this Agreement constitutes a legal, valid and binding, binding obligation of the Party enforceable against it in accordance with their respective terms, its terms subject to applicable the usual qualifications with respect to bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to availability of equitable principles remedies being within the discretion of general application regardless of whether enforcement is sought in a proceeding in equity or at lawcourt;
(f) no Event proceedings are pending for and such Party is not aware of Default, any basis for the institution of any proceedings leading to the dissolution or Potential Event winding-up of Default, has occurred and is continuing, and none will occur as a result such Party or the placing of its entering such Party into bankruptcy or performing this Agreement or subjecting such Party to any Transaction;other laws governing the affairs of insolvent persons; and
(g) it is there are not relying upon any representations of the other Party other than those expressly set forth hereinsuits, and it is acting for its own accountactions, and not as agent prosecutions investigations or in any other capacityproceedings, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the sameactual, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge the best of such Party’s knowledge, threatened litigation, arbitration against or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)affecting such Party.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date Licensor and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
(a) 8.1.1. it is a corporation or limited liability company (as applicable) duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform this Agreement;
8.1.2. the execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate: (a) such Party’s charter documents, bylaws or other organizational documents; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
any requirement of any Applicable Law; or (c) its execution and performance do not violate any order, writ, judgment, injunction, decree, determination or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment award of any Governmental Authority court or governmental agency presently in effect applicable to it or its assetssuch Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing 8.1.3. this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding in equity at law or at lawequity);
(f) no Event 8.1.4. it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations that would impede the diligent and complete fulfillment of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;; and
(m) 8.1.5. neither it nor any of its Affiliates has been debarred or is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by debarment and neither it nor any of its Affiliates will use in any capacity, in connection with the Parties.
(o) all applicable informationservices or activities to be performed under this Agreement, documents any Person who has been debarred pursuant to Section 306 of the FFDCA or statements that have been furnished who is the subject of a conviction described in writing by or on behalf of it to such section. It will inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services or activities hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date ArQule and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and covenants, that:
(a) it It is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform under this Agreement;
(b) it has the power The execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate:
(i) such Party's charter documents, bylaws or other organizational documents;
(ii) in any material respect, any agreement, instrument or contractual obligation to perform its obligations hereunderwhich such Party is bound;
(iii) any requirement of any Applicable Law; or
(iv) any order, writ, judgment, injunction, decree, determination or award of any court or governmental agency presently in effect applicable to such Party;
(c) This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its execution terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance do not violate and general principles of equity (whether enforceability is considered a proceeding at law or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsequity);
(d) all governmental and other authorizationsIt is not under any obligation, approvalscontractual or otherwise, consents, notices and filings to any Person that are required to have been obtained conflicts with or submitted by it is inconsistent in any material respect with respect to entering into and performing the terms of this Agreement have been obtained or submitted that would impede the diligent and are in full force and effect and all conditions thereof have been complied with;complete fulfilment of its obligations hereunder; and
(e) Neither it nor any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, Affiliates has been debarred or is subject to applicable bankruptcy or similar laws affecting creditors’ rights generally debarment and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result neither it nor any of its entering into or performing Affiliates will use in any capacity, in connection with the services to be performed under this Agreement or Agreement, any Transaction;
(g) it is not relying upon any representations Person who has been debarred pursuant to Section 306 of the other Party other than those expressly set forth herein, and it FFDCA or who is acting for its own account, and not as agent or the subject of a conviction described in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction such section. It will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates' Knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Sources: License Agreement (Arqule Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Parties that:
(a) it is duly organized and validly existing under Except as provided in this Agreement or consented to by the laws of the jurisdiction other Parties each of its incorporation or organizationrespective statements made herein in Section 3 is true and correct in all material respects;
(b) It is duly formed in its place of incorporation or organizations;
(c) It is good standing with respect to the filing of annual reports under the legislation under which it was incorporated or organized;
(d) It has the power full legal capacity and authority power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(ce) It has taken all corporate action that is necessary to authorize its entry into this Agreement and to perform its obligations under this Agreement;
(f) This Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy subject to laws generally affecting creditors’ rights and to principles of equity;
(g) The execution, delivery and performance by it of this Agreement does not or will not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(i) its execution and performance do not violate constitution or conflict with Applicable Law, other constating documents;
(ii) any material term or provision of its constituent documentsany security arrangement, undertaking, agreement or deed; or
(iii) any contract binding on writ, order or affecting injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement property is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisebound;
(h) No litigations, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to the best of its knowledge, threatened against it has entered hereinto with a full understanding which if adversely decided could, in the reasonable opinion of the Party’s management, have a material terms and risks of adverse effect on the sameParty’s business, and it is capable of assuming those risksassets or financial condition such as to materially impair its ability to perform its obligations under this Agreement;
(i) No liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator is currently appointed in relation to it is not relying on or any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;its property; and
(j) To the best of its knowledge after making due enquiry, there are no facts, matters or circumstances which give any person the right to appoint or to apply to appoint (as the case may be) a liquidator, trustee in bankruptcy, receiver and manager or other external administrator to it has or any of its property. Each representation and warranty contained herein will be treated as made its own independent trading and investment decisions to enter into be binding upon each transaction Party continuously during the term of this Agreement and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from each Party must immediately notify the other Party if any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to of its knowledge threatened litigation, arbitration or administrative proceeding before representations and warranties set out herein are not true and correct in any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make at any time during the information, document or statement misleading;term of this Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and is in good standing under the laws of jurisdiction of its organization or organizationincorporation;
(b) it has the all requisite power and authority required to enter into this Agreement and each other document or instrument delivered in connection herewith and has all requisite power and authority to perform fully each and every one of its obligations hereunder;
(c) it has taken all internal actions necessary to authorize it to enter into this Agreement and its execution representatives whose signatures are affixed hereto are fully authorized to sign this Agreement and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsbind such Party thereby;
(d) all governmental this Agreement constitutes a legal, valid and binding obligation of Athena, enforceable against it in accordance with the Agreement's terms, except where such enforcement may be limited by bankruptcy, insolvency and other authorizations, approvals, consents, notices laws affecting the rights of creditors generally and filings subject to equitable remedies that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are may be granted in full force and effect and all conditions thereof have been complied withthe discretion of a court of competent jurisdiction;
(e) it is not insolvent under the laws of the place of its obligations hereunder are legal, valid establishment or incorporation and binding, enforceable in accordance with their respective terms, subject is able to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, pay its debts as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawthey fall due;
(f) no Event neither the execution and delivery of Defaultthis Agreement nor any of the agreements referred to herein or contemplated hereby, nor the performance of its obligations hereunder or thereunder, nor the consummation of the transactions hereby contemplated conflict with, result in the breach of, constitute a default under, or Potential Event accelerate the performance required by, any provision of Default, has occurred and any agreement to which such Party is continuing, and none will occur as a result of its entering into party or performing this Agreement or any Transactionis subject;
(g) it is not relying upon neither the execution and delivery of this Agreement nor any representations of the other agreements referred to herein or contemplated hereby, nor the performance of its obligations hereunder, nor the consummation of the transactions hereby contemplated, shall conflict with, or result in a breach of, or constitute a default under, any provision of the constating documents, articles or by-laws of such Party, or any law, regulation, rule, authorization or approval of any Governmental Authority to which such Party other than those expressly set forth herein, and it is acting for its own account, and not as agent a party or in any other capacity, fiduciary or otherwiseis subject;
(h) it has entered hereinto with a full understanding there is no action, suit, litigation, arbitration proceeding, governmental proceeding, investigation or claim, including appeals and applications for review, in progress or, to their knowledge, threatened or pending against, or relating to such Party or affecting its assets or business, including in respect of the material terms Nubian Parties, the Property and risks of the same, and it is capable of assuming those risksother Assets;
(i) it is not relying on a party to any communication (written agreement which provides for the payment of finder's fees, brokerage fees, commissions or oral) other fees or amounts which are or may become payable to any third party in connection with the execution and delivery of this Agreement or the completion of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;transactions contemplated herein; and
(j) it has made its own independent trading all documents, statements and investment decisions to enter into each transaction and as to whether information in the possession of such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as relating to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or transactions contemplated by this Agreement which may have a material adverse effect on such Party's ability to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to fully perform its obligations hereunder;
(m) it is a “forward contract merchant” within , have been disclosed to the meaning of United States Bankruptcy Code §101(26)other Party, and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation no document previously provided by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it such Party to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a contains any untrue statement of material fact that would otherwise or omits to state any material fact necessary in order to make the information, document or statement statements contained therein not misleading;.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other that:
Party as of the Effective Date that (ai) it is duly organized and validly existing under the laws of the its jurisdiction of incorporation and has full corporate power and authority to own and operate its incorporation or organization;
property and assets and to carry on its business as it is now being conducted, (bii) it has the all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder;
under this Agreement, (ciii) execution of this Agreement and the performance by such Party of its obligations hereunder have been duly authorized by all requisite corporate action, (iv) this Agreement is legally binding and enforceable on each Party in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally and by general equitable principles and public policy constraints, and (v) none of the execution and performance do not violate delivery of this Agreement, the consummation of the transactions provided for herein or contemplated hereby, or the fulfillment by it of the terms hereof or thereof, will (with or without notice or passage of time or both) (1) conflict with Applicable Law, or result in a breach of any provision of its constituent documentsthe certificate or articles of incorporation or formation, by-laws, statutes, operating agreement or other governing documents of it, (2) result in a default, constitute a default under, give rise to any right of termination, cancellation or acceleration, or require any contract binding consent or approval (other than approvals that have heretofore been obtained) of any governmental authority or under any of the PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO THE COMPANY'S APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [*] DENOTES OMISSIONS. terms, conditions or provisions of any material note, bond, mortgage, indenture, loan, arrangement, license, agreement, lease or other instrument or obligation to which it is a party or by which its assets may be bound, or (3) violate any Law or regulation of any stock exchange on or affecting which such Party's securities are listed applicable to it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(a) it is duly organized and validly existing formed in its place of organization, is in good standing with respect to the filing of annual reports under the laws of the jurisdiction of legislation under which it is incorporated or existing, and has full legal capacity and power to carry on its incorporation or organization;
(b) it has the power and authority business, to enter into this Agreement and to perform its obligations hereunderunder this Agreement;
(b) it has taken all corporate action necessary to authorize its entry into this Agreement and the performance of its obligations under this Agreement;
(c) this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its execution terms by appropriate legal remedy, subject to laws generally affecting creditors’ rights and to principles of equity;
(d) the execution, delivery and performance do of this Agreement by it does not violate and will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Lawwith, any provision or result in a breach of or default under, its constituent constating documents, or any contract binding on material term of any undertaking, agreement, deed, security arrangement, writ, order, injunction, judgment, law, rule or affecting regulation to which it is a party or is subject, or by which it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withproperty is bound;
(e) no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to the best of its knowledge, threatened against it which, if adversely decided, could, in the reasonable opinion of the Party’s management, have a material adverse effect on the Party’s business, assets or financial condition such as to materially impair its ability to perform its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement;
(f) no Event of Defaultliquidator, trustee in bankruptcy, receiver, receiver manager or Potential Event of Default, has occurred and other external administrator is continuing, and none will occur as a result currently appointed in relation to it or any of its entering into or performing this Agreement or any Transactionproperty;
(g) to the best of its knowledge, there are no facts, matters or circumstances which give any Person the right to appoint, or to apply to appoint (as the case may be), a liquidator, trustee in bankruptcy, receiver, receiver manager or other external administrator to it is not relying upon or any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;property; and
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions aware of any Transaction will not be considered investment advice material fact or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it circumstance which has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it disclosed to the other Party which should be disclosed in connection with order to prevent its representations and warranties in this Agreement are true, accurate and complete in every Article 9 from being misleading or which may otherwise be material respect and do not omit a material fact that would otherwise make to the information, document or statement misleading;other Party.
Appears in 1 contract
Sources: Property Option Agreement
Mutual Representations and Warranties. On Each of Prevail and Precision represent and warrant, as of all of the Execution Date, the Effective Date and on each Trade the A&R Execution Date, each Party represents and warrants to the other that:
(a) 12.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates and/or Third Parties) to enable it to perform its obligations under this Agreement;
12.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
12.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Development and License Agreement (Precision Biosciences Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:: -------------------------------------
(a) it It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation or organizationand, if relevant under such laws, in good standing;
(b) it It has the corporate, governmental and/or other legal capacity, authority and power to execute, deliver and authority to enter into this Agreement and to perform its obligations hereunder, and has taken all necessary action to authorize such execution, delivery and performance;
(c) its execution Such execution, delivery and performance do not violate or conflict with Applicable Lawany law applicable to it, any provision of its constituent constitutional documents, any order or judgment of any court or other agency of government applicable to it or any contract of its assets or any contractual restriction binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing Its obligations under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) constitute its obligations hereunder are legal, valid and bindingbinding obligations, enforceable in accordance with their respective terms, terms (subject to applicable bankruptcy bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ ' rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law);
(fe) no No Event of DefaultDefault with respect to it, or Potential event which with notice and/or lapse of time would constitute such an Event of Default, has occurred and is continuing, continuing and none will no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement;
(f) There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Transactionits ability to perform its obligations hereunder;
(g) it It is not relying upon any representations of or the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisethis Agreement;
(h) it It has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it this Agreement based upon its own judgment and any advice from such advisors as it has deemed necessary necessary, with a full understanding of the material terms and not in reliance upon any view expressed by the other Party;risks thereof, and is capable of assuming those risks; and
(ki) it The other Party has not received from the other Party given to it any assurance, assurance or guarantee or promise as to the expected financial performance or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability result of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date Nabriva and on Licensee each Trade Date, each Party represents and warrants to the other other, as of the Effective Date, and, as set forth in clause (e), covenants, that:
(a) it It is a corporation or other entity duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all requisite power and authority, corporate or organizationotherwise, to execute, deliver and perform under this Agreement;
(b) it has the power The execution and authority to enter into delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not violate:
(i) such Party’s charter documents, bylaws or other organizational documents;
(ii) in any material respect, any agreement, instrument or contractual obligation to perform its obligations hereunderwhich such Party is bound;
(iii) any requirement of any Applicable Law; or
(iv) any order, writ, judgment, injunction, decree, determination or award of any court or Governmental Authority presently in effect applicable to such Party;
(c) This Agreement is a legal, valid and binding obligation of such Party enforceable against it in accordance with its execution terms and conditions, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance do not violate and general principles of equity (whether enforceability is considered a proceeding at law or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsequity);
(d) all governmental and other authorizationsIt is not under any obligation, approvalscontractual or otherwise, consents, notices and filings to any Person that are required to have been obtained conflicts with or submitted by it is inconsistent in any material respect with respect to entering into and performing the terms of this Agreement have been obtained or submitted that would impede the diligent and are in full force and effect and all conditions thereof have been complied with;complete fulfillment of its obligations hereunder; and
(e) Neither it nor any of its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, Affiliates has been debarred or is subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuingdebarment, and none will occur as a result neither it nor any of its entering into or performing Affiliates will use in any capacity, in connection with the services to be performed under this Agreement Agreement, any Person who has been debarred, in each case pursuant to Section 306 of the FFDCA (or any Transaction;
(gequivalent provision under Applicable Law) it or who is not relying upon any representations the subject of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent a conviction described in such section or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction provision. It will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to inform the other Party in connection with this Agreement are truewriting promptly if it or any such Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 of the FFDCA (or any equivalent provision under Applicable Law) or if any action, accurate and complete in every material respect and do not omit a material fact that would otherwise make suit, claim, investigation or legal or administrative proceeding is pending or, to the informationbest of its or its Affiliates’ Knowledge, document is threatened, relating to the debarment or statement misleading;conviction of it or any such Person performing services hereunder.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party hereby represents and warrants to the other thatothers as follows:
(aA) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it It has the corporate (or trust) power and authority to own its assets and carry on its business as contemplated by this Agreement, and to enter into into, and perform in accordance with, the terms of this Agreement.
(B) It has, and its officers (or trustee) acting on its behalf have, the requisite corporate (or trust) authority to engage in the transactions contemplated by this Agreement, and the execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms, conditions and provisions of this Agreement do not and will not violate, conflict with or result in a breach of any of the terms, conditions or provisions of applicable law, its organizational and governing documents or any agreement or instrument to which it is a party or by which it is bound, or constitute a default thereunder; and it is not a party to or bound to any agreement or instrument or subject to any corporate (or trust) restriction or judgment, order, writ, injunction, decree, law, rule or regulation which may materially and adversely affect its ability to perform its obligations under this Agreement.
(C) This Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, receivership, reorganization and other similar laws relating to creditors’ rights generally and to general principles of equity.
(D) It has obtained all consents, approvals, licenses, exemptions or authorizations of, or filings or registrations with, any government or governmental body which are required in connection with the execution and delivery of this Agreement and the performance of its obligations hereunder, the failure to obtain which could materially and adversely affect its ability to perform its obligations under this Agreement.
(E) There is no pending action, suit, proceeding, inquiry or investigation with respect to which notice has been served upon it before any court, governmental or public entity or arbitrator against or affecting, directly or indirectly, it or any of its properties, which if adversely determined would have a material adverse effect on its ability to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision and, to the best of its constituent documentsknowledge, no such action or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have proceeding has been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)threatened.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other that:
(a) it is a corporation duly organized and organized, validly existing and, if relevant in its jurisdiction of organization, in good standing under the laws of the its jurisdiction of its incorporation or organization;
(b) it organization and has the all requisite power and authority to enter into this Agreement and to perform its obligations hereunder;
(b) the execution, delivery and performance by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized and approved by all necessary corporate or equivalent action on its part;
(c) this Agreement has been duly executed and delivered by it and constitutes its execution legal, valid and performance do not violate or conflict binding obligation, enforceable against it in accordance with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsterms;
(d) all governmental the execution, delivery and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted performance by it with respect to entering into and performing of this Agreement have been obtained and the consummation by it of the transactions contemplated hereby do not and will not: (i) violate any Applicable Laws; (ii) conflict with, or submitted and result in the breach of any provision of its organizational documents; (iii) result in the creation of any lien or encumbrance of any nature upon any property being transferred by it pursuant to this Agreement; or (iv) violate, conflict with, result in the breach or termination of, or constitute a default under (or event which, with notice, lapse of time or both, would constitute a default under) any permit, contract or agreement to which it is a party or by which any of its properties or businesses are in full force and effect and all conditions thereof have been complied withbound;
(e) its obligations hereunder are legalno authorization, valid consent or approval of, or notice to or filing with, any Person is required for the execution, delivery and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, performance by it of this Agreement (excluding approvals of Regulatory Authorities as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;contemplated herein); and
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result neither it nor any of its entering into Affiliates is debarred under the FFDCA or performing this Agreement on the U.S. Department of Health and Human Service’s List of Excluded Individuals/Entities or any Transaction;the U.S. General Services Administration’s Lists of Parties Excluded from Federal Procurement and Non-Procurement Programs.
(g) it is not relying upon any representations as of the other Party other than those expressly Effective Date, the obligations of both Parties set forth hereinin Section 1.1, and it is acting for its own account1.2, and not as agent or in any other capacity1.3, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same1.4, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction1.5, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance1.6, guarantee or promise as to the expected or projected success1.8, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(116.1(a) and 1a(12), respectively, and all Transactions hereunder 6.1(d) have been subject to individual negotiation by the Partiescompleted in full and no ongoing obligations in those sections remain.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Exclusive Development and Distribution Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Mutual Representations and Warranties. On As of the Effective Date and on each Trade Execution Date, each Party hereto represents and warrants to the other Party that:
(a) 12.1.1 it is a corporation duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization;
(b) it organization and has the all requisite power and authority authority, corporate or otherwise, to enter into execute, deliver and perform this Agreement;
12.1.2 the execution and delivery of this Agreement and to perform its obligations hereunder;
(c) its execution the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and performance do not violate violate: (i) such Party’s charter documents, bylaws or conflict with Applicable Lawother organizational documents; (ii) in any material respect, any provision of its constituent documentsagreement, instrument or contractual obligation to which such Party is bound; (iii) any contract binding on or affecting it or any of its assets or any order or judgment requirement of any Governmental Authority applicable Law; or (iv) any Order presently in effect applicable to it or its assets;such Party;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing 12.1.3 this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are is a legal, valid and binding, binding obligation of such Party enforceable against it in accordance with their respective termsits terms and conditions, subject to applicable bankruptcy the effects of bankruptcy, insolvency or similar other laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and general principles of equity (whether enforcement enforceability is sought in considered a proceeding at law or equity);
12.1.4 it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in equity or at law;
(f) no Event any material respect with the terms of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or that would materially impede the fulfilment of its obligations hereunder; and
12.1.5 neither it nor any Transaction;
of its Affiliates has been debarred or is subject to debarment and neither it nor any of its Affiliates has used or will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant to Section 306 of the FFDCA (gor similar applicable Law outside of the U.S.) or who is the subject of a conviction described in such section; and it is not relying upon any representations of will inform the other Party other than those expressly set forth herein, and in writing promptly if it or any such Person who is acting for its own account, and not as agent performing services hereunder is debarred or is the subject of a conviction described in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding such Section 306 of the material terms and risks FFDCA (or similar applicable Law outside of the sameU.S.) or if any action, and it is capable of assuming those risks;
(i) it is not relying on any communication (written suit, claim, investigation or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration legal or administrative proceeding before any Governmental Authority is pending or, to the best of its or its Affiliates’ knowledge, is threatened, relating to the debarment or conviction of it or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations such Person performing services hereunder;; and
(m) 12.1.6 it is entitled to claim the benefits of the income tax treaty between the United States and Sweden both generally as a “forward contract merchantresident” of such jurisdiction (within the meaning of United States Bankruptcy Code §101(26)Article 4 thereof) and under the Limitation on Benefits article (Article 17, and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26as amended).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: License and Development Agreement (Selecta Biosciences Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that, as of the Execution Date and the Effective Date:
(a) 9.1.1. it is duly organized and organized, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
(b) it and has the all requisite corporate power and authority to enter into this Agreement and the BMS Sublicense and to perform its obligations hereunderunder this Agreement and the BMS Sublicense;
(c) 9.1.2. execution of this Agreement and the BMS Sublicense and the performance by such Party of its execution obligations hereunder have been duly authorized;
9.1.3. this Agreement and the BMS Sublicense has been duly executed and delivered on behalf of such Party, and is legally binding and enforceable on each Party in accordance with its terms;
9.1.4. the execution, delivery and performance do of this Agreement and the BMS Sublicense by such Party does not violate or conflict with Applicable any agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound, nor violate any Law;
9.1.5. neither such Party, nor any provision of its constituent documentsemployees, officers, subcontractors, or consultants who have rendered services relating to the Licensed Compounds or Licensed Products: (a) has ever been debarred or is subject to debarment or convicted of a crime for which an entity or person could be debarred by the FDA under 21 U.S.C. Section 335a or (b) has ever been under indictment for a crime for which a person or entity could be so debarred;
9.1.6. neither such Party nor any contract binding of its Affiliates, nor, to its Knowledge, its or their respective directors, officers, employees, distributors, agents, representatives, sales intermediaries, or other Third Parties acting on or affecting it behalf of such Party or any of its assets or Affiliates performing services under this Agreement:
(a) has taken any order or judgment action in violation of any Governmental Authority applicable to it Anti-Corruption Laws or its assets;Healthcare Laws; or
(db) all governmental and other authorizationshas corruptly offered, approvalspaid, consentsgiven, notices and filings that are required promised to have been obtained pay or submitted by it with respect to entering into and performing this Agreement have been obtained give, or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legalauthorized the payment or gift of anything of value, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy directly or similar laws affecting creditors’ rights generally and subject, as to enforceabilityindirectly, to equitable principles any Government Official, for the purposes of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on influencing any communication (written act or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions decision of any Transaction will not be considered investment advice Government Official in his or a recommendation her official capacity; (ii) inducing such Government Official to enter into that Transaction;
do or omit to do any act in violation of his or her lawful duty; (jiii) it has made its own independent trading and investment decisions securing any improper advantage; or (iv) inducing such Government Official to enter into each transaction and as do or omit to whether such transaction is appropriate do any act in violation of his or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)her lawful duty.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Collaboration and License Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Mutual Representations and Warranties. On Each of Novartis and Precision represent and warrant, as of the Effective Date and on each Trade Execution Date, each Party represents and warrants to the other that:
(a) 12.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates or Third Parties) to enable it to perform its obligations under this Agreement;
12.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
12.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Collaboration and License Agreement (Precision Biosciences Inc)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that, as of the Effective Date:
(a) it is a corporation or limited liability company, as the case may be, duly organized and validly existing under the laws of the jurisdiction state of its incorporation or organizationformation, as the case may be;
(b) excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states, it has the full power and authority right to enter into this Agreement and to perform its obligations hereunderhereunder and it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(b) due solely to noncompliance which arises solely from the fact that the Licensed Products contain cannabis;
(c) this Agreement has been duly authorized, executed and delivered by such party and constitutes a legal, valid and binding obligation of such party enforceable against such party in accordance with its execution and performance do not violate or conflict with Applicable Lawterms except as enforceability may be limited by applicable bankruptcy, any provision of its constituent documentsinsolvency, reorganization, receivership, moratorium, fraudulent transfer, or any contract binding on or other similar laws affecting it or any the rights and remedies of its assets or any order or judgment creditors generally and by general principles of any Governmental Authority applicable to it or its assetsequity;
(d) the execution, delivery and performance of this Agreement by such party does not and will not conflict with, breach or create in any Third Party the right to accelerate, terminate or modify any agreement or instrument to which such party is a party or by which such party is bound, nor (excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states) violate any law or regulation of any court, governmental body or administrative or other agency having authority over such party; it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(d) due solely to noncompliance which arises solely from the fact that the Licensed Products contain cannabis;
(e) Excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states, all consents, approvals and authorizations from all governmental and authorities or other authorizations, approvals, consents, notices and filings that are Third Parties required to have been be obtained or submitted by it such party in connection with respect to entering into the execution and performing delivery of this Agreement have been obtained and the execution, delivery and performance of this Agreement by such party does not and will not violate any law or submitted and are in full force and effect and all conditions thereof have been complied with;
(eregulation of any governmental jurisdiction or body having authority over such party; it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject due solely to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawnoncompliance which arises solely from the fact that the Licensed Products contain cannabis;
(f) no Event of Defaultperson or entity has or will have, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of the transactions contemplated by this Agreement, any right, interest or valid claim against or upon such party for any commission, fee or other compensation as a finder or broker because of any act by such party or its entering into Affiliates or performing this Agreement agents, or in addition, with respect to Company, because of any Transaction;act by its Sublicensees; and
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other entered into any agreement with any Third Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect in conflict with the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party in connection with party pursuant to this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) : it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) ; it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) ; its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) ; all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) ; its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) ; no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) Agreement; it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) ; it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) ; it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) ; it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) ; it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) ; to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) ; it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).
(n) ; it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) ; and all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;. Additional Warranties of Seller. With respect to each Designated System, Seller represents and warrants to Buyer on the Trade Date through the expiry of the Delivery Term that such Designated System complies with the Applicable Program. Upon each Delivery, Seller represents and warrants to Buyer as follows: at the time of Delivery, Seller has the right to convey title to any and all of the RECs Delivered to Buyer in accordance with this Agreement free and clear of any and all liens or other encumbrances or title defects; Seller has sold and transferred the RECs once and only once exclusively to Buyer; the RECs and any other Environmental Attributes sold hereunder have not expired and have not been, nor will be retired, claimed or represented as part of electricity output or sale, or used to satisfy any renewable energy or other carbon or renewable generation attributes obligations under Illinois law or in any other jurisdiction; and that it has made no representation, in writing or otherwise, that any third-party has received, or has obtained any right to, such RECs that are inconsistent with the rights being acquired by Buyer hereunder; and the Product is Regulatorily Continuing and complies with the Applicable Program.
Appears in 1 contract
Sources: Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision 31 NTD: IPA Act Section 1-75(c)(1)(G)(iv)(3)(E)(iii): “Permission for the ability of a contract holder to substitute projects with other waitlisted projects without penalty should a project receive a non-binding estimate of costs to construct the interconnection facilities and any required distribution upgrades associated with that project of greater than 30 cents per watt AC of that project's nameplate capacity.” of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any TransactionAgreement;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).;
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Sources: Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date Each of Dynavax and on each Trade Date, each Party represents Vaxart represent and warrants warrant to the other Party, as of the Effective Date, that:
(a) it is duly organized and validly existing under the laws Applicable Laws of the jurisdiction of its incorporation or organizationformation, as applicable, has full corporate, limited liability company or other power and authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates or Third Parties) to enable it to perform its obligations under this Agreement;
(b) it has the power is duly authorized to execute and authority to enter into deliver this Agreement and to perform its obligations hereunder;, and the individual executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate, limited liability company or other action, as applicable; and
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought considered in a proceeding at law or in equity or at law;
(fequity) no Event and the execution, delivery and performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) by it is have been duly authorized by all necessary corporate action and do not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
will not: (i) it is not relying on conflict with, or constitute a default or result in a breach under, any communication (written agreement, instrument or oral) of the other Party as investment advice understanding, oral or as a recommendation written, to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Laws; or (ii) require any consent or approval of United States Bankruptcy Code §101(26)its stockholders or similar corporate action (or, and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26if any such consent or approval is required, it has already been obtained by such Party).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Exclusive License and Collaboration Agreement (Vaxart, Inc.)
Mutual Representations and Warranties. On the Effective Date Each of Mayne and on each Trade Date, each Party Sol-Gel hereby represents and warrants to the other Party as of the Effective Date that:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction of in which it is incorporated or organized, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(bi) it has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (iii) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;
(c) its the execution and delivery of this Agreement and the performance do of its obligations hereunder shall not violate result in either a breach or violation of any of the provisions of, constitute a default under, or conflict with Applicable Law, any provision or cause the acceleration of its constituent documents, or any contract binding on or affecting it or any of its assets obligations under (i) any agreement to which it is a party or is otherwise bound by; (ii) any of the terms and provisions of its constating documents or by-laws, or resolutions of its board of directors (or any committee thereof); (iii) any judgment, decree, order or judgment award of any Governmental Authority court, governmental body or arbitrator having jurisdiction over it; (iv) any license, permit, approval, consent or authorization held by it; or (v) any applicable to it or its assets;Law.
(d) all governmental and it is not a party to any agreement, or any provision thereof, or any instrument or understanding, oral or written, that would prevent it from granting the rights granted to the other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing Party under this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied withperforming its obligations under this Agreement;
(e) its obligations hereunder are legalno consent, valid approval or agreement of any person or Governmental Authority is required to be obtained in connection with the execution and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles delivery of general application regardless of whether enforcement is sought in a proceeding in equity or at lawthis Agreement;
(f) no Event none of Defaultsuch Party’s employees, consultants or contractors has been debarred by the FDA, is the subject of a conviction described in Section 306 of the FD&C Act, or Potential Event is subject to any similar sanction of Default, has occurred and is continuingany other Governmental Authority outside of the U.S., and none will occur as a result neither it nor any of its entering into Affiliates has used, in any capacity, any person or performing this Agreement entity who either has been debarred by the FDA, is the subject of a conviction described in Section 306 of the FD&C Act or is subject to any Transaction;such similar sanction inside or outside of the U.S.; and
(g) it is not relying upon aware of any representations Government Official or Other Covered Party having any financial interest in the subject matter of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent this Agreement or in any other capacityway personally benefiting, fiduciary directly or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the sameindirectly, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Agreement.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Product Purchase Agreement (Sol-Gel Technologies Ltd.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party Each party represents and warrants to the other that, as of the Effective Date:
(a) it is a corporation or limited liability company, as the case may be, duly organized and validly existing under the laws of the jurisdiction state of its incorporation or organizationformation, as the case may be;
(b) excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states, it has the full power and authority right to enter into this Agreement and to perform its obligations hereunderhereunder and it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(b) due solely to noncompliance which arises solely from the fact that the Licensed Products contain cannabis;
(c) this Agreement has been duly authorized, executed and delivered by such party and constitutes a legal, valid and binding obligation of such party enforceable against such party in accordance with its execution and performance do not violate or conflict with Applicable Lawterms except as enforceability may be limited by applicable bankruptcy, any provision of its constituent documentsinsolvency, reorganization, receivership, moratorium, fraudulent transfer, or any contract binding on or other similar laws affecting it or any the rights and remedies of its assets or any order or judgment creditors generally and by general principles of any Governmental Authority applicable to it or its assetsequity;
(d) the execution, delivery and performance of this Agreement by such party does not and will not conflict with, breach or create in any Third Party the right to accelerate, terminate or modify any agreement or instrument to which such party is a party or by which such party is bound, nor (excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states) violate any law or regulation of any court, governmental body or administrative or other agency having authority over such party; it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(d) due solely to noncompliance which arises solely from the fact that the Licensed Products contain cannabis;
(e) Excluding any effect of the fact that the manufacture, distribution, or possession with intent to distribute of cannabis and/or cannabis derived products are illegal under US federal law and under the laws of certain countries and states, all consents, approvals and authorizations from all governmental and authorities or other authorizations, approvals, consents, notices and filings that are Third Parties required to have been be obtained or submitted by it such party in connection with respect to entering into the execution and performing delivery of this Agreement have been obtained and the execution, delivery and performance of this Agreement by such party does not and will not violate any law or submitted regulation of any governmental jurisdiction or body having authority over such party; it is expressly understood that neither party shall be entitled to terminate this Agreement for violation of this Section 9.1(e) due solely to noncompliance which arises solely from the fact that the Licensed Products contain cannabis; ***Certain information has been omitted and are in full force and effect and all conditions thereof have filed separately with the Commission. Confidential treatment has been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance requested with their respective terms, subject respect to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;the omitted portions.
(f) no Event of Defaultperson or entity has or will have, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of the transactions contemplated by this Agreement, any right, interest or valid claim against or upon such party for any commission, fee or other compensation as a finder or broker because of any act by such party or its entering into Affiliates or performing this Agreement agents, or in addition, with respect to Company, because of any Transaction;act by its Sublicensees; and
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other entered into any agreement with any Third Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect in conflict with the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it rights granted to the other Party in connection with party pursuant to this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;Agreement.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other thatParty as follows:
(a) it 9.1.1. It is a corporation duly organized and validly existing under the laws law of the jurisdiction of its incorporation or organizationin which it is incorporated;
(b) it 9.1.2. It has the corporate and legal right, title, power and authority to enter into this Agreement and to perform its obligations hereundercarry out the provisions hereof;
(c) its 9.1.3. It has all necessary corporate and any other approvals for execution, delivery and performance of this Agreement;
9.1.4. Upon execution and performance do not violate or conflict with Applicable Lawdelivery, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, shall constitute a valid and bindingbinding obligation of it, enforceable in accordance with their respective its terms, subject to except as enforceability may be limited by applicable bankruptcy bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and subject, except as enforceability may be subject to enforceability, to equitable general principles of general application equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law), to the extent that these laws cannot be and are not contracted out by the terms of this Agreement;
(f) no Event 9.1.5. The execution, delivery and performance of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement will not conflict in any way with the terms of any other agreement or instrument to which it is or becomes a party or by which it is or becomes bound, nor violate any Transactionlaw or regulation or decision of any court, governmental body or administrative or other agency having authority over it;
(g) it is not relying upon any representations of the other 9.1.6. The persons executing this Agreement on its behalf are duly authorized to do so and by so doing have bound such Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of this Agreement; and
9.1.7. There is no action, suit, investigation or proceeding pending against, or to its knowledge, threatened against or affecting it before any Transaction will court, arbitrator or any governmental authority, including but not be considered investment advice limited to regulatory authorities, that in any manner challenges or a recommendation seeks to enter into that Transaction;
(j) it has made prevent, enjoin, alter or materially delay the contemplated transactions, and, to its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assuranceknowledge, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending reasonably valid basis for any such action, suit investigation or proceeding to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), be brought. [***] Certain information in this document has been omitted and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it submitted separately to the other Party in connection Securities and Exchange Commission. Confidential treatment has been requested separately with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make to the information, document or statement misleading;omitted portions.
Appears in 1 contract
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereto represents and warrants (as to itself only and, with respect to Bioverda and Virgin, as to the Investor) to the other Parties, as of the date of this Agreement and, if Units are issued to the Investor pursuant to the terms of this Agreement, as of the date of each such issuance of Units, that:
(a) it It is duly organized and organized, validly existing and in good standing under the laws of the its jurisdiction of establishment and (i) in the case of the Company, that the Company has all requisite company power and authority to own, operate and lease the properties and assets it now owns, operates and leases, and to carry on its incorporation business as and where such properties and assets are now owned, operated and leased and as such business is now conducted and (ii) in the case of Bioverda and Virgin, that Bioverda and Virgin, as applicable, has all requisite power and authority to carry on its business as such business is now conducted insofar as the same is material to the performance of the obligations of Bioverda or organization;Virgin, as applicable, under this Agreement.
(b) it It has the full power and authority to enter into into, deliver and perform its obligations under this Agreement and has taken all necessary corporate action to perform its obligations hereunder;
(c) its execution authorize the execution, delivery and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) this Agreement constitutes its obligations hereunder are legal, valid and binding, binding obligation enforceable against it in accordance with their respective termsthe terms set forth herein, subject to applicable bankruptcy except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect affecting the enforcement of creditors’ rights generally and subject, as to enforceability, to equitable by general principles of general application equity (regardless of whether enforcement is sought in a proceeding in equity or at law;).
(fc) no Event Each of Defaultthe execution, or Potential Event delivery and performance by such Party of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is does not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and will not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on conflict with or violate any communication provision of any constitutional or governance documents of such Party, (ii) constitute a violation by such Party of any law, rule, regulation, order, writ, judgment, injunction or decree applicable to such Party, (iii) contravene any provision, or constitute a default under, any indenture, mortgage, contract (written or oral) of the or other Party as investment advice or as a recommendation instrument to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within party or by which it is or any of its property is bound or (iv) result in or require the meaning creation or imposition of United States Bankruptcy Code §101(26)any lien, pledge, hypothecation or other encumbrance upon any of its property or assets, except to the extent of the Operating Agreement amendments.
(d) There is no action, suit, investigation, litigation or proceeding affecting such Party pending or threatened which purports to affect the legality, validity or enforceability of this Agreement.
(e) It has (or, in the case of the Investor, will have) sufficient financial resources to discharge its obligations and to perform this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning transactions contemplated hereby assuming, in the case of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”the Company, the closing on the Offering and its required debt financing as described in the Offering, and an “eligible contract participant” within there are no liabilities, contingent liabilities, obligations or restrictions imposed on its operations or activities which could interfere with the meaning performance of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents its obligations under this Agreement or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;transactions contemplated hereby.
Appears in 1 contract
Sources: Investment Terms Agreement (Ethanol Grain Processors, LLC)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Lawapplicable law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transactionTransaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction Transaction and as to whether such transaction Transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) to its knowledge there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26101(25).);
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(111a(17) and 1a(121a(18), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.; and
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;.
Appears in 1 contract
Sources: Master Renewable Energy Certificate Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
: (a) as of the Effective Date, it is a corporation duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organization;
incorporation, and it has full power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as it is contemplated to be conducted by this Agreement; (b) as of the Effective Date, it has the full right, power and authority to enter into this Agreement and to grant the rights granted by it under this Agreement; (c) as of the Effective Date, there are no existing or, to its knowledge, threatened actions, suits or claims pending with respect to the subject matter of this Agreement or its right to enter into and perform its obligations hereunder;
(c) its execution and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
under this Agreement; (d) as of the Effective Date, it has taken all governmental necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement; (e) this Agreement has been duly executed and delivered on behalf of it, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof, subject to the general principles of equity and to bankruptcy, insolvency, moratorium and other authorizationssimilar Laws affecting the enforcement of creditors’ rights generally; (f) as of the Effective Date, approvals, all necessary consents, notices approvals and filings that are authorizations of all regulatory and governmental authorities and other Persons required to have been be obtained or submitted by it in connection with respect to entering into the execution and performing delivery of this Agreement and the performance of its obligations under this Agreement have been obtained or submitted obtained; and are in full force (g) the execution and effect delivery of this Agreement and all conditions thereof have been complied with;
(e) the performance of its obligations hereunder are legal, valid and binding, enforceable in accordance do not conflict with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result any of its entering into contractual obligations (except that Acorda makes no representation or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto warranty with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or respect to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely obligations pursuant to materially adversely affect the ability of either Acorda Third Party to perform its obligations hereunder;
(mAgreements) it is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit constitute a material fact that would otherwise make the information, document or statement misleading;default under any of its contractual obligations. 8.2
Appears in 1 contract
Sources: Supply Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party hereby represents and warrants to the other thatParty that as of the Effective Date:
(a) it is a company or corporation duly organized organized, validly existing, and validly existing in good standing under the laws Applicable Laws of the jurisdiction of in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its incorporation or organizationproperty and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;
(bi) it has the corporate power and authority and the legal right to enter into this Agreement and all instruments and documents to be delivered by it hereunder and perform its obligations hereunder or thereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; (iii) it has taken all other action required by Applicable Laws, its certificate of incorporation, bylaws and other organizational documents and any agreement to which it is a party or to which it may be subject required to authorize such execution, delivery and performance; and (iv) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms, except as enforcement may be affected by bankruptcy, insolvency or other similar laws and by general principles of equity;
(c) it is not a party to any agreement that would prevent it from granting the rights granted to the other Party under this Agreement or performing its obligations under this Agreement;
(d) the execution and delivery of this Agreement by it and all instruments and documents to be delivered by it hereunder, and the performance by it contemplated hereunder or thereunder does not and will not (i) violate any Applicable Laws or any order of any court or other Governmental Authority, except for such violations that would not have a material adverse effect on the ability of the Party to perform its obligation under this Agreement, or (ii) violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which it is a party or by which it or any of its property is bound, which violation would have an adverse effect on its financial condition or on its ability to perform its obligations hereunder;
(ce) its execution and neither the execution, delivery nor the performance do not violate of this Agreement by such Party requires it to obtain any permits, authorizations or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of consents from any Governmental Authority applicable (other than any Regulatory Approvals relating to it the Development, Manufacture, Commercialization or its assets;
(dother exploitation of Products for use in the Field) all governmental and or from any other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law;Person; and
(f) no Event it is in compliance, and has policies and procedures designed to promote compliance, with Sanctions and Export Control Laws, and neither it nor any of Defaultits directors, officers, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) it employees is a “forward contract merchant” within the meaning of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)Sanctioned Person.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Each Party represents and warrants to the other Party that:
(aA) it is duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction under which it is organized, and is authorized to do business in the State of its incorporation or organizationTexas;
(bB) it has the full power and authority to enter into this Agreement and to perform its obligations hereunderall of the specified obligations, representations, warranties, and covenants under this Agreement;
(cC) its execution the execution, delivery, and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing this Agreement have been obtained or submitted duly authorized by all requisite action of its governing body, and are in full force the Person signing this Agreement on its behalf was duly authorized to execute and effect and all conditions thereof have been complied withdeliver this Agreement on its behalf;
(eD) its obligations hereunder are legalit has obtained, valid or shall obtain prior to beginning performance under this Agreement, all licenses, registrations, certifications, Permits, and bindingother authorizations; and has taken, enforceable in accordance or shall take prior to beginning performance under this Agreement, all actions required by applicable laws or governmental regulations with their respective termsthe exception of licenses, subject to applicable bankruptcy registrations, certifications, Permits, or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at lawother authorizations that do not materially affect performance under this Agreement;
(f) no Event of Default, or Potential Event of Default, has occurred and is continuing, and none will occur as a result of its entering into or performing this Agreement or any Transaction;
(gE) it is not relying upon in violation of any representations contracts, laws, ordinances, or governmental rules, regulations, or orders of the other Party other than those expressly set forth herein, any governmental authority or arbitration board materially affecting performance of this Agreement and to which it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisesubject;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(iF) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation bankrupt, does not contemplate becoming bankrupt nor, to enter into a transactionits knowledge, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transactionbecome bankrupt;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(mG) it is a “forward contract merchant” within solely responsible for keeping itself informed of and understanding its respective responsibilities under the meaning of United States Bankruptcy Code §101(26)Governing Rules and the ERCOT Operating Guides, and this Agreement any laws, rules, regulations, and all Transactions hereunder constitute “forward contracts” within tariffs approved by any governmental authority with jurisdiction over the meaning of United States Bankruptcy Code §101(26).matters specified herein; and
(nH) it is an “eligible commercial entity”acknowledges and affirms that the foregoing representations, warranties, and an “eligible contract participant” within covenants are continuing in nature throughout the meaning term of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Partiesthis Agreement.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract
Sources: Agreement to Provide Qse and Marketing Services (Commerce Energy Group, Inc.)
Mutual Representations and Warranties. On Each of Lilly and Merus represent and warrant, as of the Effective Date and on each Trade Date, each Party represents and warrants to the other that:
(a) 10.1.1 it is duly organized and validly existing under in the laws Applicable Laws of the jurisdiction of its incorporation or organization;
(b) it formation, as applicable, has the full corporate, limited liability company or other power and authority authority, as applicable, to enter into this Agreement and to carry out the provisions hereof, and has sufficient facilities, experienced personnel or other capabilities (including via Affiliates and/or Third Parties) to enable it to perform its obligations under this Agreement;
10.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Law, any provision of its constituent documents, or any contract binding on or affecting it or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assets;
(d) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering into and performing the individual executing this Agreement have on its behalf has been obtained duly authorized to do so by all requisite corporate, limited liability company or submitted other action, as applicable; and
10.1.3 this Agreement is legally binding upon it and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, valid and binding, enforceable in accordance with their respective termsits terms (except as the enforceability thereof may be limited by bankruptcy, subject to applicable bankruptcy bank moratorium or similar laws affecting creditors’ rights generally and subject, as laws restricting the availability of equitable remedies and may be subject to enforceability, to equitable general principles of general application regardless of equity whether enforcement or not such enforceability is sought [*] Certain information in this document has been omitted as the information is not material and would be competitively harmful if publicly disclosed. considered in a proceeding at law or in equity or at law;
equity) and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate action and do not and will not: (fa) no Event of Defaultconflict with, or Potential Event of Defaultconstitute a default or result in a breach under, has occurred and is continuingany agreement, and none will occur as a result of its entering into instrument or performing this Agreement understanding, oral or any Transaction;
(g) it is not relying upon any representations of the other Party other than those expressly set forth hereinwritten, and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwise;
(h) it has entered hereinto with a full understanding of the material terms and risks of the same, and it is capable of assuming those risks;
(i) it is not relying on any communication (written or oral) of the other Party as investment advice or as a recommendation to enter into a transaction, and understands that information and explanations related to the terms and conditions of any Transaction will not be considered investment advice or a recommendation to enter into that Transaction;
(j) it has made its own independent trading and investment decisions to enter into each transaction and as to whether such transaction is appropriate or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party;
(k) it has not received from the other Party any assurance, guarantee or promise as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwise) hereunder;
(l) there is no pending or to its knowledge threatened litigation, arbitration or administrative proceeding before any Governmental Authority or any arbitrator that is likely to materially adversely affect the ability of either Party to perform its obligations hereunder;
(m) which it is a “forward contract merchant” within the meaning party or by which it may be bound, or violate any Applicable Law; or (b) require any consent or approval of United States Bankruptcy Code §101(26), and this Agreement and all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)its stockholders or similar.
(n) it is an “eligible commercial entity”, and an “eligible contract participant” within the meaning of United States Commodity Exchange Act §§1a(11) and 1a(12), respectively, and all Transactions hereunder have been subject to individual negotiation by the Parties.
(o) all applicable information, documents or statements that have been furnished in writing by or on behalf of it to the other Party in connection with this Agreement are true, accurate and complete in every material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;
Appears in 1 contract