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 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 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 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 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 Party represents and warrants to the other that:
(a) it is duly organized and validly existing under the laws Each of the jurisdiction of its incorporation or organization;
(b) it has the power Parties represents, warrants and authority to enter into this Agreement covenants, severally and to perform its obligations hereunder;
(c) its execution not jointly 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 solely 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 legalitself, valid and binding, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subjecteach other Party, 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, date of this SRC Agreement 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 Closing Date (or, with respect to a New Investor Transferee, as defined in the Third-Party Commitment Assignment and risks Joinder Form in Exhibit C, the date of execution of such form and as of the sameClosing Date), and it is capable of assuming those risks;as follows:
(i) it is not relying on any communication (written or oral) validly existing and in good standing under the laws of the other Party as investment advice state or as a recommendation to enter into a transactioncountry of its organization, and understands that information this SRC Agreement is the legally valid and explanations related binding obligation of such Party, enforceable against it in accordance with its terms (subject, as to the terms enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium and conditions similar laws of any Transaction will not be considered investment advice general applicability relating to or a recommendation affecting creditors' rights and to enter into that Transactiongeneral principles of equity);
(jii) it has made all requisite corporate, partnership, limited liability company or similar authority to execute this SRC Agreement and carry out the transactions contemplated herein and in the Agreed Plan and perform its own independent trading obligations hereunder and investment decisions to enter into each transaction in the Agreed Plan, and as to whether the execution and delivery of this SRC Agreement and the performance of such transaction is appropriate Party’s obligations hereunder and in the Agreed Plan have been duly authorized by all necessary corporate, partnership, limited liability company or proper for it based upon other similar action on 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 Partypart;
(kiii) it has not received from except as expressly provided in the SRC Agreement or the Agreed Plan, no consent or approval is required by any other Party any assuranceperson or entity to carry out the transactions contemplated by, guarantee or promise as and perform their respective obligations under, the Agreed Plan and this SRC Agreement, except (1) for approval by the Reorganization Court with respect to the expected Debtors, (2) potential approvals by ANATEL and ▇▇▇▇, (3) if and to the extent required under applicable securities laws, the declaration that the Rights Registration Statement is effective by the SEC, (4) such additional steps as may be necessary to qualify the Offered Shares for public offering by the Company under the state securities or projected successblue sky laws of any state in the United States in which the Offered Shares are offered, profitability, return, performance, result, effect, consequence or benefit and (either economic, legal, regulatory, tax, financial, accounting or otherwise5) hereunder;such additional steps as may be necessary to qualify the Offered Shares for public offering by the Company under the securities laws of any jurisdiction other than Brazil and the United States in which the Offered Shares are offered; and
(liv) there is are no pending side letters, agreements or arrangements among any Debtors, any Investors or other holder of Bonds (i) relating to its knowledge threatened litigationthe sale or purchase of any securities of a Debtor, arbitration or administrative proceeding before any Governmental Authority the incurrence of debt of a Debtor or any arbitrator backstop commitment agreement other than this SRC Agreement and the Agreed Plan; or (ii) that is likely to materially could adversely affect any Investor’s rights under this SRC Agreement or 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)Agreed Plan.
(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: Subscription and Commitment Agreement, Subscription and Commitment Agreement, Subscription and Commitment Agreement
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 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, 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 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 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 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 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 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 COH and on Scopus each Trade Date, each Party represents and warrants to the other thatas follows:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it 9.1.1 It has the power right and authority to enter into this Agreement and all action required to perform be taken on its behalf, its officers, directors, partners and stockholders necessary for the authorization, execution, and delivery of this Agreement and, the performance of all of its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Lawthis Agreement, any provision of its constituent documentswhen executed and delivered, 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, will constitute valid and bindinglegally binding obligations of such Party, enforceable in accordance with their respective its terms, subject to applicable bankruptcy to: (i) laws limiting the availability of specific performance, injunctive relief, and other equitable remedies; and (ii) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect generally relating to or 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 lawgenerally;
(f) no Event 9.1.2 It has read this Agreement, with assistance from its counsel of Defaultchoice. It understands all of this Agreement’s terms. It has been given a reasonable amount of time to consider the contents of this Agreement before each Party executed it. It agrees that it is executing this Agreement voluntarily with full knowledge of this Agreement’s legal significance; and
9.1.3 It has made such investigation of all matters pertaining to this Agreement that it deems necessary, and does not rely on any statement, promise, or Potential Event of Defaultrepresentation, has occurred and is continuingwhether oral or written, 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 with respect to such matters 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 agrees that it is not relying in any manner on any communication (statement, promise, representation or understanding, whether oral, written or oral) of implied, made by any Party, not specifically set forth in this Agreement. It acknowledges that, after the other Party as investment advice Effective Date, it may discover facts different from or as a recommendation in addition to enter into a transactionthose which it now knows or believes to be true. Nevertheless, and understands it agrees 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 shall be and remain in full force and effect in all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)respects, notwithstanding such different or additional facts.
(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: Conditional Stock Purchase Agreement (Scopus BioPharma Inc.), Exclusive License Agreement (Scopus BioPharma 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: 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 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 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 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 (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 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 COH and on Licensee each Trade Date, each Party represents and warrants to the other thatas follows:
(a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or organization;
(b) it 9.1.1 It has the power right and authority to enter into this Agreement and all action required to perform be taken on its behalf, its officers, directors, partners and stockholders necessary for the authorization, execution, and delivery of this Agreement and, the performance of all of its obligations hereunder;
(c) its execution , and performance do not violate or conflict with Applicable Lawthis Agreement, any provision of its constituent documentswhen executed and delivered, 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, will constitute valid and bindinglegally binding obligations of such Party, enforceable in accordance with their respective its terms, subject to applicable bankruptcy to: (i) laws limiting the availability of specific performance, injunctive relief, and other equitable remedies; and (ii) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect generally relating to or 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 lawgenerally;
(f) no Event 9.1.2 It has read this Agreement, with assistance from its counsel of Defaultchoice. It understands all of this Agreement’s terms. It has been given a reasonable amount of time to consider the contents of this Agreement before each Party executed it. It agrees that it is executing this Agreement voluntarily with full knowledge of this Agreement’s legal significance; and
9.1.3 It has made such investigation of all matters pertaining to this Agreement that it deems necessary, and does not rely on any statement, promise, or Potential Event of Defaultrepresentation, has occurred and is continuingwhether oral or written, 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 with respect to such matters 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 agrees that it is not relying in any manner on any communication (statement, promise, representation or understanding, whether oral, written or oral) of implied, made by any Party, not specifically set forth in this Agreement. It acknowledges that, after the other Party as investment advice Effective Date, it may discover facts different from or as a recommendation in addition to enter into a transactionthose which it now knows or believes to be true. Nevertheless, and understands it agrees 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 shall be and remain in full force and effect in all Transactions hereunder constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26)respects, notwithstanding such different or additional facts.
(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: Non Exclusive License Agreement (Adicet Bio, Inc.), Exclusive License Agreement (GeoVax Labs, 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 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 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 Theravance and on GSK each Trade Date, each Party represents and warrants to the other as of the Effective Date that:
11.1.1 Such Party (a) it is a company duly organized organized, validly existing, and validly existing in good standing under the laws of the jurisdiction Laws of its incorporation or organization;
incorporation; (b) it is duly qualified as a corporation and in good standing under the Laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, where the failure to be so qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; (c) has the requisite corporate power and authority and the legal right to enter into conduct its business as now conducted and hereafter contemplated to be conducted; (d) has or will obtain all necessary licenses, permits, consents, or approvals from or by, and has made or will make all necessary notices to, all Governmental Authorities having jurisdiction over such Party, to the extent required for the ownership and operation of its business, where the failure to obtain such licenses, permits, consents or approvals, or to make such notices, would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; and (e) is in compliance with its charter documents;
11.1.2 The execution, delivery and performance of this Agreement by such Party and all instruments and documents to be delivered by such Party hereunder (a) are within the corporate power of such Party; (b) have been duly authorized by all necessary or proper corporate action; (c) do not conflict with any provision of the charter documents of such Party; (d) will not, to the best of such Party's knowledge, violate any law or regulation or any order or decree of any court of governmental instrumentality; (e) will not violate or conflict with any terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which such Party is a Party, or by which such Party or any of its property is bound, which violation would have a material adverse effect on its financial condition or on its ability to perform its obligations hereunder;
(c) its execution 11.1.3 This Agreement has been duly executed 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 delivered by such Party 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 bindingbinding obligation of such Party, enforceable against such Party in accordance with their respective its terms, subject to except as such enforceability may be limited by applicable bankruptcy or similar laws insolvency and other 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 Defaultgenerally, or Potential Event by the availability of Defaultequitable remedies; and
11.1.4 All of its employees, has occurred and is continuingofficers, and none will occur consultants have executed agreements or have existing obligations under law requiring assignment to such Party of all Inventions made by such individuals during the course of and as a the result of its entering into or performing their association with such Party, and obligating such individuals to maintain as confidential such Party's Confidential Information.
11.1.5 Nothing contained in this Agreement or any Transaction;
(g) it is not relying upon any representations of shall give a Party 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 right to use 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 Confidential Information 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 any activity other than Development and Commercialization of an Alliance Product consistent 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 2 contracts
Sources: Strategic Alliance Agreement (Theravance Inc), Strategic Alliance Agreement (Theravance 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 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 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 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 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 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 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 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 (or the Hydropower Refurbishment Completion Date if the Project is a Hydropower Project that is newly Modernized or Retooled) 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 1 contract
Sources: Renewable Energy Credit Agreement
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 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 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 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 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 Mabwell and on Disc each Trade Date, each Party represents and warrants to the other thatother, as of the Execution Date:
(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 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 (and to perform the extent required, will be ratified by such party’s shareholders promptly following the Execution Date) by all necessary corporate action and do not violate (i) such Party’s charter documents, bylaws, or other organizational documents; (ii) any agreement, instrument or contractual obligation to which 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 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 (whether enforceability is considered a proceeding at law or equity);
(d) 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 this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder;
(ce) 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 Neither it or nor any of its assets Affiliates has been debarred or is subject to debarment and neither it nor any 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 FFDCA or any order foreign equivalents or judgment who is the subject 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 a conviction described 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 such section. It 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 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 any foreign equivalents 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; and
Appears in 1 contract
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 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 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 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 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 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 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 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 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 its ability to perform its obligations under this Agreement and that could reasonably be expected to result in a Material Adverse Change; ny-1664023
17.1.8 it has entered into the Transaction Documents and will enter into any Transaction;
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 1 contract
Sources: Inventory Intermediation Agreement (PBF Energy Co 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 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 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
Sources: Master Renewable Energy Credit Purchase and Sale Agreement
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 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 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 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 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 Each Party hereby represents, warrants, and on each Trade Date, each Party represents and warrants covenants to the other Party that:
(a) it such Party is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation in which it is incorporated or organizationformed;
(b) it such Party has the requisite power and authority to enter into execute and deliver this Agreement and to fully perform its obligations hereunder, and the individual executing this Agreement on behalf of such Party has the authority to do so;
(c) its execution the execution, delivery and performance of this Agreement and the performance of such Party’s obligations hereunder (i) has been duly authorized by all of its corporate actions necessary on the part of such Party; (ii) do not violate or and will not conflict with or violate any requirement of Applicable Law, (iii) do not and will not conflict with or violate the certificate of incorporation, certificate of formation, bylaws, limited partnership agreement or other organizational documents of such Party, and (iv) do not and will not conflict with, violate, breach or constitute a default under any provision agreement, instrument or contractual obligations of its constituent documents, or any contract binding on or affecting it such Party or any of its assets or any order or judgment of any Governmental Authority applicable to it or its assetsAffiliates;
(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 is a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency or submitted other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance and are in full force and effect and all conditions thereof have been complied with;general principles of equity (whether enforceability is considered a proceeding at law or equity); and
(e) its obligations hereunder are legalsuch Party is not debarred or disqualified under the United States Federal Food, valid Drug and binding, enforceable Cosmetic Act or any comparable Applicable Law in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally the Territory 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 continuingit does not, and none will occur as a result not during the Term, employ or use the services of its entering into any Person who is debarred or performing this Agreement or disqualified, in connection with activities relating to any Transaction;
Product (g) it is not relying upon any representations being understood that, in the event that such Party becomes aware of the other Party other than those expressly set forth herein, and it is acting for its own account, and not as agent debarment or in any other capacity, fiduciary disqualification 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 threatened debarment 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 disqualification of any Transaction will not be considered investment advice Person providing services to such Party, including the Party itself, its Affiliates or a recommendation sublicensees, which directly or indirectly relate 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 activities under this Agreement, 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 shall immediately notify the other Party in connection with writing and such Party shall cease employing, contracting with, or retaining such Person to perform any services under 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
Sources: Exclusive Distribution Agreement (Revance Therapeutics, 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 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 1 contract
Sources: 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 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 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 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 Each of the Effective Date and on each Trade Date, each Party Constituent Corporations hereby represents and warrants to the other that:Constituent Corporation as to the matters in this Section 8, unless a representation and warranty specify that it is only being made specifically by one or more of the Constituent Corporations. All of the representations and warranties set forth in this Section 8 shall be made as of the Signing Date and as of the Effective Time (except in the case of representations and warranties that are made as of a specified date, in which case such representations and warranties will be true and correct as of such specified date).
(a) That it is a corporation duly organized authorized and validly existing under the laws of the jurisdiction State of Wisconsin and has the corporate power to own or lease its incorporation or organizationproperties and to carry on its business as now being conducted;
(b) The copies of its articles of incorporation and bylaws made available to the other Constituent Corporation are the true, correct and complete copies of such documents in effect as of the Effective Time and it is not in violation of any of the provisions of its articles of incorporation or bylaws;
(c) That it is not, and immediately prior to the Effective Time will not be in default under its articles of incorporation or bylaws, or in default under any indenture or under any material agreement or other material instrument to which it is a party or by which it or any of its properties is bound or to which it is subject;
(d) That the balance sheet and statements of income and surplus delivered to the other Constituent Corporation fairly present, in accordance with Wisconsin Statutes governing accounting for such Constituent Corporation, the financial condition and results of the operations of such Constituent Corporation as of the dates and for the periods indicated;
(e) That there has been no Material Adverse Change (as defined below) in its financial condition from the date the balance sheet and statements of income and surplus were delivered to the other Constituent Corporation until the Effective Time;
(f) That there is no action, suit, or proceeding pending against it involving the possibility of any judgment, order, injunction, or decree which might result in any Material Adverse Change in its business, operations, properties or assets or the condition, financial or otherwise, or which would impair its ability to enter into this Agreement and consummate the Merger, except the order issued by the OCI to all Chapter 612 town mutual insurance corporations on July 28, 2023 relating to the Rehabilitation Plan;
(g) That its Board of Directors has adopted resolutions (i) approving this Agreement and the documents and transactions contemplated hereby, (ii) authorizing the execution and delivery of this Agreement, (iii) with respect to NFMIC, directing that this Agreement be submitted to a vote of NFMIC’s members taken separately at a duly held meeting called for the purpose of considering and acting upon this Agreement;
(h) That it has the full power and authority to enter into this Agreement and and, with respect to perform its obligations hereunderNFMIC, upon appropriate consent of NFMIC’s members in accordance with applicable law, subject to obtaining all required regulatory approvals, to consummate the transactions contemplated hereby;
(ci) 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 That this Agreement have has been obtained or submitted duly executed by such Constituent Corporation and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes the valid and bindinglegally binding obligation of such Constituent Corporation, enforceable against such Constituent Corporation in accordance with their respective its terms, subject to applicable bankruptcy bankruptcy, receivership, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors’ rights generally and subject, as subject to enforceability, to equitable general 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 Transactionequity;
(j) it has made its own independent trading That, subject to the receipt of all consents and investment decisions approvals contemplated by this Agreement, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the fulfillment of and compliance with the terms and provisions hereof, will not (i) violate any judicial, administrative or arbitral order, writ, award, judgment, injunction or decree involving such Constituent Corporation, (ii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws of such Constituent Corporation, (iii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws, (iv) conflict with, result in a breach of, constitute a default under or accelerate or permit the acceleration of the performance required by, any indenture or any material agreement or other material instrument to enter into each transaction and as to whether which such transaction Constituent Corporation is appropriate bound, (v) result in the creation of any lien, charge or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance encumbrance upon any view expressed by of the other Partyassets of either company under any such agreement or instrument, or (vi) terminate or give any party thereto the right to terminate any such indenture, agreement or instrument;
(k) it has not received from That no consent of any third party to any indenture of any material agreement or other material instrument to which such Constituent Corporation is a party is required in connection with this Agreement and 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) hereundertransactions contemplated hereby;
(l) there NFMIC has good and marketable title to the office building owned by NFMIC and located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that such property is no pending free of all mortgages, liens, charges, and encumbrances of any nature whatsoever, other than (i) liens for taxes connected to the property not yet due and payable and (ii) such minor liens, charges, and encumbrances as, in the aggregate, do not and would not if asserted have a material adverse effect on the assets, properties, business, financial condition, 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 results of either Party to perform its obligations hereunderNFMIC’s operations;
(m) it is a “forward contract merchant” within NFMIC has heretofore delivered to MMIC all contracts for the meaning purchase or lease of United States Bankruptcy Code §101(26)tangible property, real or personal, and any other contracts creating executory obligations on MMIC’s part beyond the Signing Date of this Agreement which may not be canceled on notice of thirty (30) days or less, and all Transactions hereunder constitute “forward contracts” within that NFMIC will not incur any new executory obligations, without approval of MMIC, between the meaning of United States Bankruptcy Code §101(26).Signing Date and the Effective Time; and
(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 That such Constituent Corporation has heretofore delivered to the other Party in connection with this Agreement are trueConstituent Corporation all employment contracts, accurate contracts for the purchase or lease of tangible property, real or personal, and complete in every material respect any other contracts creating executory obligations on its part beyond the Effective Time which may not be canceled on notice of thirty (30) days or less, and do that it will not omit a material fact that would otherwise make incur any new executory obligations, without the information, document or statement misleading;approval of the other corporation during the Interim Period.
Appears in 1 contract
Sources: Merger 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 a legitimate business entity duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation state or organizationprovince in which it is organized or incorporated;
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required, except where the failure to be so qualified, in the aggregate, could not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
(c) it has the power full right, power, and corporate 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 the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement, and other authorizationsits delivery of this Agreement, approvals, consents, notices and filings that are required to have been obtained or submitted duly authorized 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 withnecessary corporate action;
(e) its obligations hereunder are legalexecution, valid delivery, and bindingperformance of this Agreement will not violate, enforceable conflict with, require consent under or result in accordance any breach or default under (i) any of its organizational documents, (ii) any applicable Law or (iii) with their respective termsor without notice or lapse of time or both, subject the provisions of any agreement 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 which it is sought in a proceeding in equity or at lawbound;
(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 Transactionhas been executed and delivered by it and (assuming due authorization, execution and delivery by the other Party) constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms;
(g) it is not relying upon any representations of the other Party other than those expressly set forth herein, in compliance with all applicable Laws and it is acting for its own account, and not as agent or in any other capacity, fiduciary or otherwisecontracts relating to this Agreement;
(h) it has entered hereinto with a full understanding of the material terms obtained all Permits required by applicable Laws to conduct its business generally and risks of the same, to exercise its rights and it is capable of assuming those risksperform its obligations under this Agreement;
(i) it is not relying on insolvent and is paying all of its debts as they become due; and in the case of Seller only, Seller represents that: (i) all financial information that it has provided to Buyer is true and accurate and fairly represents Seller’s financial condition; (ii) all of Seller’s manufacturing or warehousing facilities used by Seller to fulfill its obligations under this Agreement have a current and appropriate registration required for domestic or foreign facilities; and (iii) none of Seller’s Intellectual Property used in the Products infringes or violates 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 Intellectual Property Right 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)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: Preferred Master Manufacturing Agreement (Biolargo, Inc.)
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each Party The Purchaser represents and warrants to the other thatVendor and Vendor represents and warrants to the Purchaser, as follows:
(a) in the case of the Purchaser, it is duly organized and validly existing under the laws of the jurisdiction place of its establishment or incorporation and is in good standing and existing under the laws of the place of its establishment or organizationincorporation, and in the case of the Vendor, he is the full age of majority and is legally competent to execute this Agreement and take all action pursuant hereto;
(b) this Agreement constitutes a legal, valid and binding obligation of the Party, enforceable against it in accordance with its terms by appropriate legal remedy, subject, however, to limitations with respect to enforcement imposed by Applicable Law in connection with bankruptcy or similar proceedings and to the extent that equitable remedies such as specific performance and injunction are in the discretion of the court from which they are sought;
(c) the Party is not insolvent under the Applicable Laws of its jurisdiction and is able to pay its debts as they fall due;
(d) neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder or thereunder, nor the consummation of the transactions hereby contemplated conflict with any of, or require the consent or waiver of rights of any Person, nor do or shall do any of the foregoing:
(i) violate any provision of or require any consent, authorization or approval under any Applicable Law;
(ii) conflict with, result in a breach of, constitute a default under (whether with notice or the lapse of time or both), accelerate or permit the acceleration of the performance required by, or require any consent, authorization or approval which has not been obtained under, any contract to which it the Party is a party or by which the Party is bound or to which any of the Party’s property is subject; or
(iii) result in the creation of any Encumbrance on the Property, except in accordance with the terms of this Agreement;
(e) the Party has 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) 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;; and
(f) no Event of Defaultthe Party has not incurred any liability, contingent or Potential Event of Defaultotherwise, has occurred and is continuing, and none will occur as a result of its entering into for brokers’ or performing this Agreement or any Transaction;
(g) it is not relying upon any representations finders’ fees in respect of 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 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
Sources: Option Agreement
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 and on each Trade Date, each Each Party to this Agreement represents and warrants to the other Party that:
(a) 17.1.1 it is an entity which has been duly organized formed and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organizationwhere it is formed;
(b) 17.1.2 it has the all requisite power and authority to enter into execute, deliver and perform its obligations under 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 each SOW in accordance with their respective terms;
17.1.3 the execution, subject delivery and performance of this Agreement and each SOW (a) has been duly authorized by its requisite officials, (b) shall not conflict with, result in a breach of, or constitute a default under any other agreement to which it is a party or by which it is bound, and shall not constitute an event that would, with notice and/or lapse of time, constitute such a default, and (c) to its knowledge, will not result in a violation of or conflict with any applicable bankruptcy or similar laws affecting creditors’ rights generally law, and subject, as to enforceability(d) there is no proceeding pending or, to equitable principles the knowledge of general application regardless of whether enforcement is sought in the Party, threatened, which challenges or may have a proceeding in equity material adverse affect on this Agreement or at lawthe transactions contemplated by this Agreement;
(f) no Event of Default17.1.4 it is duly licensed, authorized or Potential Event of Default, has occurred qualified to do business and is continuingin good standing in every jurisdiction in which a license, and none will occur as a result authorization or qualification is required for the ownership or leasing of its entering into assets or performing the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations under this Agreement or any TransactionSOW;
17.1.5 there is no outstanding (gor, to the best of its knowledge, pending or threatened) litigation, arbitrated matter or other dispute to which it is not relying upon a Party that if, decided unfavourably to it, would reasonably be expected to have a material adverse effect on its ability to fulfill its obligations under this Agreement 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;SOW; 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 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) 17.1.6 it has not received from the other Party violated any assurance, guarantee applicable laws 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)regulations.
(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 (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 and on each Trade Date, each Each Party hereby represents and warrants to the other other, as of the Effective Date, that:
(a) 11.1.1 it is a corporation duly organized organized, validly existing, and validly existing 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;
11.1.2 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) any agreement, instrument, or contractual obligation to which 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;
11.1.3 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 (whether enforceability is considered a proceeding at law or equity);
11.1.4 it is not under any obligation, contractual or otherwise, to a Person that conflicts with or is inconsistent with the terms of this Agreement, or that would impede the diligent and complete fulfillment of its obligations hereunder;
11.1.5 to its knowledge, it has not (i) employed and has not used a Contractor or consultant that has employed, any Person debarred by the power FDA (or subject to similar sanctions of the EMA or other Regulatory Authority) or (ii) employed any Person that is the subject of an FDA debarment investigation or proceeding (or similar proceeding of the EMA or other Regulatory Authority), with respect to (i)-(ii), in the conduct of any pre-clinical activities with respect to Compounds;
11.1.6 no consent of any Third Party is required for such Party to grant the licenses and authority rights granted to enter into the other Party under this Agreement and or to perform its obligations hereunder;; and
(c) its execution 11.1.7 all of such Party’s personnel and performance do not violate or conflict with Applicable Lawemployees and Third Parties, any provision of its constituent documentsincluding Contractors, hired by such Party and involved in activities under this Agreement are, or when hired will be, under a written agreement whereby they have presently assigned to such Party any contract binding right that they may have in any invention first invented, discovered, made, conceived or reduced to practice while employed by or working on behalf of such Party in the conduct of activities pursuant to the Research Plan, or affecting it in the Development, Manufacture or Commercialization of any of its assets such Compounds 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), respectivelyProducts, and all Transactions hereunder have been subject to individual negotiation by the Partiesintellectual property rights therein.
(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 that:
(a) it is a corporation or a limited liability company, as applicable, duly organized and validly existing in good standing under the laws Laws of the jurisdiction of its incorporation or organizationformation, 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) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereundergrant the rights and licenses granted by it under this Agreement;
(c) as of the Execution Date, neither the FDA Action nor any other pending action, suit or claim to which it is a party or, to its execution and performance do not violate or conflict with Applicable Lawknowledge, any provision action, suit or claim threatened against it, affects or limits its right to enter into and perform its obligations under this Agreement or (except for the FDA Action) relates 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 or its assetsthis Agreement;
(d) as of the Execution 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 Execution 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;Agreement, including Section 5.5, 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 do not conflict with, or constitute “forward contracts” within the meaning of United States Bankruptcy Code §101(26).
(n) it is an “eligible commercial entity”a default under, 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, its organizational documents or statements that have been furnished in writing by or on behalf any of it its contractual obligations, including, with respect to Licensor: the other Party in connection with this Agreement are trueLicense Agreement, accurate dated as of March 3, 2009, between Licensor and complete in every material respect NeoStem, Inc., as amended; the Consulting Agreement, dated as of May 1, 2009, between Licensor and do not omit a material fact that would otherwise make NeoStem, Inc., as amended; the informationLicense Agreement, document or statement misleading;dated as of November 1, 2009, between Licensor and Stematix, Inc., as amended; the Consulting Agreement, dated as of October 12, 2009, between Licensor and Stematix, Inc., as amended; the Licensing Agent Agreement, dated as of September 30, 2009, between Stematix, Inc. and Licensor, as amended; and the Licensing Agreement, dated as of October 4, 2011, 2011, between Licensor and The Rehabilitation Medicine Center of New Jersey, P.A. as amended.
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:
(a) it Each party that is a corporation is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation and is duly organized qualified and authorized to do business in the State of California. Each party that is a partnership is a partnership duly formed, validly existing and in good standing as a partnership under the laws of its state of organization. Each party that is a trust is a trust duly created, and validly existing as a trust under the laws of the jurisdiction of its incorporation or organization;state under which it was created.
(b) it It has the full power and authority to enter into this Agreement and to perform consummate the transactions contemplated hereby. This Agreement is its obligations hereunder;or his (as applicable) valid and binding agreement, enforceable against it or him in accordance with its terms (as to ▇▇▇▇▇, its representation in this sentence is limited solely to Section 1.5 until the Effective Date, at which time this representation shall apply to the entire Agreement).
(c) its Neither the execution and performance do not violate delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate, result in a breach of any of the terms or provisions of, constitute a default (or any event that, with the giving of notice or the passage of time or both would constitute a default) under, accelerate any obligations under, or conflict with Applicable Lawwith, any provision of (i) its constituent charter or bylaws (or other organizational documents), if applicable, or any contract binding on agreement, indenture or affecting other instrument to which it is party or any of its assets or any order or judgment of any Governmental Authority applicable to by which it or its assets;properties are bound, (ii) any judgment, decree, order or award of any court, governmental body or arbitrator to which it is subject, or (iii) any law, rule or regulation applicable to it.
(d) all governmental It or he (as applicable) has carefully read the entirety of this Agreement, knows and other authorizationsunderstands the contents hereof, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to entering enters into and performing this Agreement have been obtained in good faith, freely and voluntarily without undue influence, coercion, fraud or submitted and are in full force and effect and all conditions thereof have been complied with;duress.
(e) It or he (as applicable) has not sold, assigned, pledged, hypothecated or otherwise transferred any of its obligations hereunder are legalor his interests in the Actions, valid and bindingor either of the Actions, enforceable in accordance with their respective terms, subject to applicable bankruptcy or similar laws affecting creditors’ rights generally and subject, as to enforceabilityany claim released hereby, 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 person 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)entity.
(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: Settlement Agreement (Craig Corp)
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 hereby represents and warrants to the other Party, as of the Execution Date, that:
(a) it is duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, and is duly qualified to do business therein and in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure to so qualify could reasonably be expected to have a material adverse effect on its ability to perform its obligations pursuant to the Agreement;
(b) it is not in violation of any applicable laws or permits or judgments issued or entered by any Governmental Authority, which violation, individually or in the aggregate with other such violations, could reasonably be expected to have a material adverse effect on its ability to perform its obligations pursuant to the Agreement;
(c) there are no Claims pending or, to its knowledge, threatened against it which, if adversely determined, could reasonably be expected to have a material adverse effect on its ability to perform its obligations pursuant to the Agreement;
(d) none of the execution, delivery or performance of the Agreement conflict with, or result in a violation or breach of, the terms of its charter, by-laws or other organizational documents or any applicable law, regulation, order, writ, injunction, award, judgment or decree of any court or Governmental Authority or any agreement, contract, indenture or other instrument to which it or its assets is bound or to which it or its assets is subject;
(e) the execution, delivery and performance of the Agreement have been duly authorized by all requisite corporate or other company action and it has the all requisite corporate or other company power and authority to enter into this the Agreement and to perform its obligations hereunder;; and
(cf) its execution the Agreement has been duly 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 validly executed and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted delivered 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) constitutes its obligations hereunder are legal, valid and binding, binding obligation enforceable against it in accordance with their respective its terms, subject to applicable bankruptcy except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting relating to the enforcement of creditors’ rights generally and subject, as to enforceability, to or by the application of general equitable principles of general application (regardless of whether enforcement is sought considered 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 law 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(26equity).
(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: Subscription Agreement
Mutual Representations and Warranties. On the Effective Date and on each Trade Date, each (1) Each Party represents and warrants to the other Party that, except as set out in Schedule 2:
(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 has the power full legal capacity and authority power:
(i) to own its property and assets and to carry on its business as currently carried on; and
(ii) to enter into this Agreement and to perform its obligations hereunderunder this Agreement subject to compliance with applicable securities laws and regulatory requirements;
(c) it has taken all corporate action that is necessary to authorize its execution entry into this Agreement and to perform its obligations under this Agreement;
(d) 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;
(e) the execution, delivery and performance do by it of this Agreement does not violate or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with Applicable Law, or result in a breach of or default under:
(i) its constitution or 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 lawbound;
(f) no Event of Defaultlitigation, arbitration, mediation, conciliation or Potential Event of Defaultadministrative proceedings are taking place, has occurred and is continuingpending or, and none will occur as a result to the best of its entering into 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 performing financial condition such as to materially impair its ability to perform its obligations under this Agreement or any Transactionother than, with respect to BMR, [REDACTED: Summary of threatened legal action.];
(g) no liquidator, trustee in bankruptcy, receiver or receiver and manager or other external administrator is currently appointed in relation 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 otherwiseproperty;
(h) 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 or receiver and manager or other external administrator 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 unaware of any Transaction will not be considered investment advice material facts 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 circumstances that have not been furnished disclosed in writing by or on behalf of it this Agreement, which should be disclosed to the other Party in connection with order to prevent the representations and warranties in this section 2.1(1) from being materially misleading.
(2) The representations and warranties given in and under section 2.1(1) will be treated as made and be binding upon each Party continuously during the term of this Agreement and each Party must immediately notify the other Party if any of its representations and warranties set out in section 2.1(1) are true, accurate not true and complete correct in every any 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 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(26101(25), 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
Sources: Master Renewable Energy Credit Purchase and Sale Agreement
Mutual Representations and Warranties. On (1) Silver Bull, the Effective Date Company and on each Trade DateContratistas, each respectively, represent and warrant to South32 and South32 Party represents and warrants to each Silver Bull Party that on the other thatEffective Date:
(a) it is duly organized formed, incorporated, amalgamated or continued (as the case may be) and validly existing exists under the laws of the jurisdiction law of its incorporation place of formation, incorporation, amalgamation or organizationcontinuance;
(b) it is in good standing under the legislation under which it was formed, incorporated, amalgamated or continued (as the case may be);
(c) 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.
(d) it is or at the relevant time will be directly or indirectly (through an Affiliate) qualified to do business in Coahuila State, Mexico and lawfully authorized to hold Mineral Rights in Coahuila State, Mexico;
(ce) it has taken all action (whether corporate, by its shareholders or otherwise) 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 (where applicable);
(g) the execution, delivery and performance by it of this Agreement does 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 Charter Documents;
(ii) any material term or conflict with Applicable Law, any 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 litigation, arbitration, mediation, conciliation or administrative proceedings are taking place, pending or, to 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 (including the Property) 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 Transactionits property;
(j) to 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 or receiver and manager or other external administrator to it has made or any of 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;property; and
(k) it has is unaware of any material facts or circumstances that have not received from the been disclosed in this Agreement, which should be disclosed to each other Party any assurance, guarantee or promise as in order to prevent the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (either economic, legal, regulatory, tax, financial, accounting or otherwiserepresentations and warranties in this section 2.1(1) hereunder;from being materially misleading.
(l2) 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 representations and warranties contained in section 2.1(1) will be treated as made and be binding upon each Party continuously during the ability term 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 each Party must immediately notify each other Party if any of its representations and warranties set out in connection with this Agreement section 2.1 are true, accurate not true and complete correct in every any material respect and do not omit a material fact that would otherwise make the information, document or statement misleading;respect.
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 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 the Effective Date and on each Trade Date, each Party Constituent Corporations hereby represents and warrants to the other that:Constituent Corporation as to the matters in this Section 8, unless a representation and warranty specify that it is only being made specifically by one or more of the Constituent Corporations. All of the representations and warranties set forth in this Section 8 shall be made as of the Signing Date and as of the Effective Time (except in the case of representations and warranties that are made as of a specified date, in which case such representations and warranties will be true and correct as of such specified date).
(a) That it is a corporation duly organized authorized and validly existing under the laws of the jurisdiction State of Wisconsin and has the corporate power to own or lease its incorporation or organizationproperties and to carry on its business as now being conducted;
(b) The copies of its articles of incorporation and bylaws made available to the other Constituent Corporation are the true, correct and complete copies of such documents in effect as of the Effective Time and it is not in violation of any of the provisions of its articles of incorporation or bylaws;
(c) That it is not, and immediately prior to the Effective Time will not be in default under its articles of incorporation or bylaws, or in default under any indenture or under any material agreement or other material instrument to which it is a party or by which it or any of its properties is bound or to which it is subject;
(d) That the balance sheet and statements of income and surplus delivered to the other Constituent Corporation fairly present, in accordance with Wisconsin Statutes governing accounting for such Constituent Corporation, the financial condition and results of the operations of such Constituent Corporation as of the dates and for the periods indicated;
(e) That there has been no Material Adverse Change (as defined below) in its financial condition from the date the balance sheet and statements of income and surplus were delivered to the other Constituent Corporation until the Effective Time;
(f) That there is no action, suit, or proceeding pending against it involving the possibility of any judgment, order, injunction, or decree which might result in any Material Adverse Change in its business, operations, properties or assets or the condition, financial or otherwise, or which would impair its ability to enter into this Agreement and consummate the Merger;
(g) That its Board of Directors has adopted resolutions (i) approving this Agreement and the documents and transactions contemplated hereby and (ii) authorizing the execution and delivery of this Agreement;
(h) That it has the full power and authority to enter into this Agreement and and, subject to perform its obligations hereunderobtaining all required regulatory approvals, to consummate the transactions contemplated hereby;
(ci) 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 That this Agreement have has been obtained or submitted duly executed by such Constituent Corporation and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes the valid and bindinglegally binding obligation of such Constituent Corporation, enforceable against such Constituent Corporation in accordance with their respective its terms, subject to applicable bankruptcy bankruptcy, receivership, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors’ rights generally and subject, as subject to enforceability, to equitable general 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 Transactionequity;
(j) it has made its own independent trading That, subject to the receipt of all consents and investment decisions approvals contemplated by this Agreement, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the fulfillment of and compliance with the terms and provisions hereof, will not (i) violate any judicial, administrative or arbitral order, writ, award, judgment, injunction or decree involving such Constituent Corporation, (ii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws of such Constituent Corporation, (iii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws, (iv) conflict with, result in a breach of, constitute a default under or accelerate or permit the acceleration of the performance required by, any indenture or any material agreement or other material instrument to enter into each transaction and as to whether which such transaction Constituent Corporation is appropriate bound, (v) result in the creation of any lien, charge or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance encumbrance upon any view expressed by of the other Partyassets of either company under any such agreement or instrument, or (vi) terminate or give any party thereto the right to terminate any such indenture, agreement or instrument;
(k) it has not received from That no consent of any third party to any indenture of any material agreement or other material instrument to which such Constituent Corporation is a party is required in connection with this Agreement and 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) hereundertransactions contemplated hereby;
(l) there ▇▇▇▇▇▇▇▇▇ has good and marketable title to the office building owned by ▇▇▇▇▇▇▇▇▇ and located at ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇, Hortonville, WI 54944, that such property is no pending free of all mortgages, liens, charges, and encumbrances of any nature whatsoever, other than (i) liens for taxes connected to the property not yet due and payable and (ii) such minor liens, charges, and encumbrances as, in the aggregate, do not and would not if asserted have a material adverse effect on the assets, properties, business, financial condition, 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 results of either Party to perform its obligations hereunder▇▇▇▇▇▇▇▇▇’▇ operations;
(m) it is a “forward contract merchant” within ▇▇▇▇▇▇▇▇▇ has heretofore delivered to Homestead all contracts for the meaning purchase or lease of United States Bankruptcy Code §101(26)tangible property, real or personal, and any other contracts creating executory obligations on Homestead’s part beyond the Signing Date of this Agreement which may not be canceled on notice of thirty (30) days or less, and all Transactions hereunder constitute “forward contracts” within that ▇▇▇▇▇▇▇▇▇ will not incur any new executory obligations, without approval of Homestead, between the meaning of United States Bankruptcy Code §101(26).Signing Date and the Effective Time; and
(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 That such Constituent Corporation has heretofore delivered to the other Party in connection with this Agreement are trueConstituent Corporation all employment contracts, accurate contracts for the purchase or lease of tangible property, real or personal, and complete in every material respect any other contracts creating executory obligations on its part beyond the Effective Time which may not be canceled on notice of thirty (30) days or less, and do that it will not omit a material fact that would otherwise make incur any new executory obligations, without the information, document or statement misleading;approval of the other corporation during the Interim Period.
Appears in 1 contract
Sources: Merger Agreement
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party Constituent Corporations hereby represents and warrants to the other that:Constituent Corporation as to the matters in this Section 7, unless a representation and warranty specify that it is only being made specifically by one or more of the Constituent Corporations. All of the representations and warranties set forth in this Section 7 shall be made as of the Signing Date and as of the Effective Time (except in the case of representations and warranties that are made as of a specified date, in which case such representations and warranties will be true and correct as of such specified date).
(a) That it is a corporation duly organized authorized and validly existing under the laws of the jurisdiction State of Wisconsin and has the corporate power to own or lease its incorporation or organizationproperties and to carry on its business as now being conducted;
(b) The copies of its articles of incorporation and bylaws made available to the other Constituent Corporation are the true, correct and complete copies of such documents in effect as of the Effective Time and it is not in violation of any of the provisions of its articles of incorporation or bylaws;
(c) That it is not, and immediately prior to the Effective Time will not be in default under its articles of incorporation or bylaws, or in default under any indenture or under any material agreement or other material instrument to which it is a party or by which it or any of its properties is bound or to which it is subject;
(d) That the balance sheet and statements of income and surplus delivered to the other Constituent Corporation fairly present, in accordance with Wisconsin Statutes governing accounting for such Constituent Corporation, the financial condition and results of the operations of such Constituent Corporation as of the dates and for the periods indicated;
(e) That there has been no Material Adverse Change (as defined below) in its financial condition from the date the balance sheet and statements of income and surplus were delivered to the other Constituent Corporation until the Effective Time;
(f) That there is no action, suit, or proceeding pending against it involving the possibility of any judgment, order, injunction, or decree which might result in any Material Adverse Change in its business, operations, properties or assets or the condition, financial or otherwise, or which would impair its ability to enter into this Agreement and consummate the Merger, except the order issued by the OCI to all Chapter 612 town mutual insurance corporations on July 28, 2023 relating to the Rehabilitation Plan;
(g) That its Board of Directors has adopted resolutions (i) approving this Agreement and the documents and transactions contemplated hereby, (ii) authorizing the execution and delivery of this Agreement, (iii) with respect to TCMTIC, directing that this Agreement be submitted to a vote of TCMTIC’s members taken separately at a duly held meeting called for the purpose of considering and acting upon this Agreement;
(h) That it has the full power and authority to enter into this Agreement and and, with respect to perform its obligations hereunderTCMTIC, upon appropriate consent of TCMTIC’s members in accordance with applicable law, subject to obtaining all required regulatory approvals, to consummate the transactions contemplated hereby;
(ci) 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 That this Agreement have has been obtained or submitted duly executed by such Constituent Corporation and are in full force and effect and all conditions thereof have been complied with;
(e) its obligations hereunder are legal, constitutes the valid and bindinglegally binding obligation of such Constituent Corporation, enforceable against such Constituent Corporation in accordance with their respective its terms, subject to applicable bankruptcy bankruptcy, receivership, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors’ rights generally and subject, as subject to enforceability, to equitable general 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 Transactionequity;
(j) it has made its own independent trading That, subject to the receipt of all consents and investment decisions approvals contemplated by this Agreement, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the fulfillment of and compliance with the terms and provisions hereof, will not (i) violate any judicial, administrative or arbitral order, writ, award, judgment, injunction or decree involving such Constituent Corporation, (ii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws of such Constituent Corporation, (iii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws, (iv) conflict with, result in a breach of, constitute a default under or accelerate or permit the acceleration of the performance required by, any indenture or any material agreement or other material instrument to enter into each transaction and as to whether which such transaction Constituent Corporation is appropriate bound, (v) result in the creation of any lien, charge or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance encumbrance upon any view expressed by of the other Partyassets of either company under any such agreement or instrument, or (vi) terminate or give any party thereto the right to terminate any such indenture, agreement or instrument;
(k) it has not received from That no consent of any third party to any indenture of any material agreement or other material instrument to which such Constituent Corporation is a party is required in connection with this Agreement and 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) hereundertransactions contemplated hereby;
(l) there is no pending The office building located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇.▇. Box 157, Iron River, WI 54847 constitutes all the fee and leasehold interest in real property held for use in connection with, necessary for the conduct of, or to its knowledge threatened litigationotherwise material to, 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 hereunderTCMTIC’s operations;
(m) it is a “forward contract merchant” within TCMTIC has heretofore delivered to MMIC all contracts for the meaning purchase or lease of United States Bankruptcy Code §101(26)tangible property, real or personal, and any other contracts creating executory obligations on MMIC’s part beyond the Signing Date of this Agreement which may not be canceled on notice of thirty (30) days or less, and all Transactions hereunder constitute “forward contracts” within that TCMTIC will not incur any new executory obligations, without approval of MMIC, between the meaning of United States Bankruptcy Code §101(26).Signing Date and the Effective Time; and
(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 That such Constituent Corporation has heretofore delivered to the other Party in connection with this Agreement are trueConstituent Corporation all employment contracts, accurate contracts for the purchase or lease of tangible property, real or personal, and complete in every material respect any other contracts creating executory obligations on its part beyond the Effective Time which may not be canceled on notice of thirty (30) days or less, and do that it will not omit a material fact that would otherwise make incur any new executory obligations, without the information, document or statement misleading;approval of the other corporation during the Interim Period.
Appears in 1 contract
Sources: Merger Agreement
Mutual Representations and Warranties. On Each of the Effective Date and on each Trade Date, each Party Constituent Corporations hereby represents and warrants to the other that:Constituent Corporation as to the matters in this Section 12. All of the representations and warranties set forth in this Section 12 shall be made as of the Signing Date and as of the Closing Date (except in the case of representations and warranties that are made as of a specified date, in which case such representations and warranties will be true and correct as of such specified date).
(a) That it is a corporation duly organized authorized and validly existing under the laws of the jurisdiction State of Wisconsin and has the corporate power to own or lease its incorporation or organizationproperties and to carry on its business as now being conducted;
(b) That the balance sheet and statements of income and surplus delivered to the other Constituent Corporation fairly present, in accordance with Wisconsin Statutes governing accounting for such Constituent Corporation, the financial condition and results of the operations of such Constituent Corporation as of the dates and for the periods indicated;
(c) That there has been no Material Adverse Change in its financial condition from the date the balance sheet and statements of income and surplus were delivered to the other Constituent Corporation until the Closing Date;
(d) The copies of its articles of incorporation and bylaws made available to the other Constituent Corporation are the true, correct and complete copies of such documents in effect as of the Closing Date and it is not in violation of any of the provisions of its articles of incorporation or bylaws;
(e) That there is no action, suit, or proceeding pending against it involving the possibility of any judgment, order, injunction, or decree which might result in any Material Adverse Change in its business, operations, properties or assets or the condition, financial or otherwise, or which would impair its ability to enter into this Agreement and consummate the Merger;
(f) That its Board of Directors has adopted resolutions (i) approving this Agreement and the documents and transactions contemplated hereby, (ii) authorizing the execution and delivery of this Agreement, (iii) with respect to ▇▇▇▇▇▇, directing that this Agreement be submitted to a vote of ▇▇▇▇▇▇’s members taken separately at a duly held meeting called for the purpose of considering and acting upon this Agreement;
(g) That it has the full power and authority to enter into this Agreement and and, with respect to perform its obligations hereunder▇▇▇▇▇▇, upon appropriate consent of ▇▇▇▇▇▇’s members in accordance with applicable law, subject to obtaining all required regulatory approvals, to consummate the transactions contemplated hereby;
(ch) That this Agreement has been duly executed by such Constituent Corporation and constitutes the valid and legally binding obligation of such Constituent Corporation, enforceable against such Constituent Corporation in accordance with its execution terms, subject to bankruptcy, receivership, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors’ rights generally and performance do subject to general principles of equity;
(i) That it is not, and immediately prior to the Closing Date will not violate be in default under its articles of incorporation or conflict with Applicable Law, any provision of its constituent documentsbylaws, or in default under any contract binding on indenture or affecting under any material agreement or other material instrument to which it is a party or by which it or any of its assets properties is bound 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) which 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 Transactionsubject;
(j) it has made its own independent trading That, subject to the receipt of all consents and investment decisions approvals contemplated by this Agreement, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the fulfillment of and compliance with the terms and provisions hereof, will not (i) violate any judicial, administrative or arbitral order, writ, award, judgment, injunction or decree involving such Constituent Corporation, (ii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws of such Constituent Corporation, (iii) conflict with the terms, conditions or provisions of the articles of incorporation or bylaws, (iv) conflict with, result in a breach of, constitute a default under or accelerate or permit the acceleration of the performance required by, any indenture or any material agreement or other material instrument to enter into each transaction and as to whether which such transaction Constituent Corporation is appropriate bound, (v) result in the creation of any lien, charge or proper for it based upon its own judgment and any advice from such advisors as it has deemed necessary and not in reliance encumbrance upon any view expressed by of the other Partyassets of either company under any such agreement or instrument, or (vi) terminate or give any party thereto the right to terminate any such indenture, agreement or instrument;
(k) it has not received from the That no consent of any third party to any indenture of any material agreement or other Party any assurance, guarantee or promise as material instrument 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 which such Constituent Corporation 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 party 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 required in connection with this Agreement are trueand the transactions contemplated hereby; and
(l) That such Constituent Corporation has heretofore delivered to the other Constituent Corporation all employment contracts, accurate contracts for the purchase or lease of tangible property, real or personal, and complete in every material respect any other contracts creating executory obligations on its part beyond the Closing Date which may not be canceled on notice of thirty (30) days or less, and do that it will not omit a material fact that would otherwise make incur any new executory obligations, without the information, document or statement misleading;approval of the other corporation during the Interim Period.
Appears in 1 contract
Sources: Merger Agreement