Customer Representations and Warranties (a) The Customer represents and warrants that: (i) the Customer has the legal right, power and authority to execute, deliver and perform this Agreement and to carry out all of the transactions contemplated hereby; (ii) the execution and delivery of this Agreement by MDP on behalf of the Customer will not violate any provision of its charter, bylaws or any other governing documents, or any law, or any regulation, interpretation or order or any court or other government agency, or judgment, applicable to the Customer; (iii) the Customer has obtained all necessary authorizations, including those from any persons who may have an interest in the Securities, including the consent or approval of any governmental agency or instrumentality; (iv) the execution, delivery and performance of this Agreement and the carrying out of any of the transactions contemplated hereby will not be in conflict with, result in a breach of or constitute a default under any agreement or other instrument to which the Customer is a party or which is otherwise known to the Customer, including but not limited to, liens against and/or pledges of Securities; and (v) all persons executing this Agreement on behalf of the Customer and carrying out the transactions contemplated hereby on behalf of the Customer are duly authorized to do so.
(b) The Customer represents and warrants that it is an "investment company" as defined in the Investment Company Act and that it will indicate each "affiliate" as defined in the Investment Company Act by instructing the Bank not to lend the Customer's Securities to such Borrower, or to enter into repurchase agreements on Customer's behalf with such Borrower and/or its affiliates, by completion of Exhibit B hereto.
(c) The Customer is aware that it is possible to loan portfolio securities without incurring the loan fees payable pursuant hereto by administering such a program itself, rather than hiring the Bank.
(d) The Customer represents and warrants that each Person who owns, controls or possesses securities which may be lent pursuant to this agreement is identified in the Customer Information Sheet attached hereto as Exhibit A and made a part hereof, such Customer Information Sheet to be updated from time to time upon written notice to the Bank from the Customer ("Customer Information Sheet") and that the tax identification number of such Person is set forth opposite such Person's name on such Customer Information Sheet.
(e) The Customer represents and warrants that (i) it has reviewed and understands the offering memorandum or similar materials relating to Customer's initial Collateral Investment; (ii) it will review and develop an understanding of the offering memorandum or similar materials in connection with any future Collateral Investments; and (iii) it will provide a Collateral Investment letter for acceptance by Bank in substantially the form attached hereto as Exhibit D and made a part hereof in connection with each Collateral Investment.
(f) The Customer represents and warrants that the information contained in the attached Customer Information Sheet is complete and accurate in all respects as of the date hereof and the Customer acknowledges and affirms that the Bank may rely upon the accuracy and completeness of the information contained in the Customer Information Sheet in complying with its obligations under applicable laws and regulations.
(g) The Customer represents and warrants that all recitals contained herein are true and correct in all respects as they relate to the Customer.
Licensor’s Representations and Warranties Licensor represents and warrants that:
(a) The patents and patent applications identified on Schedule A are accurately described and are all the patents and patent applications currently owned by Licensor or its Affiliates that are necessary or useful for Licensor to make, use, offer to sell, sell, and import the Licensed Products in the Field of Use in the Territory;
(b) it and its Affiliates are the sole and exclusive owners of the entire right, title, and interest in and to the Licensed Patents in the Field of Use in the Territory, as evidenced by the assignment agreements attached hereto as Exhibit 2;
(c) it has, and throughout the Term will retain, the right to grant the license granted to Licensee hereunder, and it has not granted, and is not under any obligation to grant, to any third party any license, lien, option, encumbrance, or other contingent or non-contingent right, title, or interest in or to the Licensed Patents in the Field of Use in the Territory that conflicts with the rights and licenses granted to Licensee hereunder;
(d) Licensor has complied and/or will comply in all material respects with all applicable Laws in connection with the prosecution of the Licensed Patents, including any disclosure requirements of the United States Patent and Trademark Office and any foreign patent office, and has timely paid and/or will pay all filing and renewal fees payable with respect thereto;
(e) Licensor will comply with all terms of the UMB Agreement to preserve its rights in the Option;
(f) Licensor intends to and will make its best commercial efforts to exercise its option and take a UMB License under the UMB Agreement during the Term of the UMB Agreement in compliance with the terms of the UMB Agreement.
(g) Licensor understands that the Preferred Stock and the shares of common stock of the Licensor underlying the Preferred Stock (“Conversion Shares”) are “restricted securities” and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any applicable state securities law and is acquiring the Preferred Stock and Conversion Shares as principal for its own account and not with a view to or for distributing or reselling such Preferred Stock and Conversion Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Preferred Stock and Conversion Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Preferred Stock and Conversion Shares in violation of the Securities Act or any applicable state securities law. Licensor is acquiring the Preferred Stock and Conversion Shares hereunder in the ordinary course of its business.
(h) At the time Licensor was offered the Preferred Stock, it was, and as of the date hereof it is, and on each date on which it converts any shares of Preferred Stock, it will be an “accredited investor” as defined in Rule 501(a) under the Securities Act.
(i) Licensor, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Preferred Stock and Conversion Shares, and has so evaluated the merits and risks of such investment. Licensor is able to bear the economic risk of an investment in the Preferred Stock and Conversion Shares and, at the present time, is able to afford a complete loss of such investment.
(j) Licensor is not, to Licensor’s knowledge, purchasing the Preferred Stock and Conversion Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Stock and Conversion Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of Licensor, any other general solicitation or general advertisement.
(k) Licensor acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Preferred Stock and Conversion Shares and the merits and risks of investing in the Preferred Stock and Conversion Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
(l) The Preferred Stock and Conversion Shares received upon conversion of the Preferred Stock may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Preferred Stock or Conversion Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge, the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Preferred Stock or Conversion Shares under the Securities Act.
Contractor Representations and Warranties Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time any order is placed pursuant to this Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.
Lessor’s Representations and Warranties Lessor represents and warrants that it will abide by and conform to all such laws, governmental and airport orders, rules and regulations, as shall from time to time be in effect relating in any way to the operation and use of the Aircraft pursuant to this Agreement.
Subscriber Representations and Warranties Subscriber represents and warrants to the Company that:
(a) If Subscriber is a legal entity, Subscriber (i) has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of formation or incorporation and (ii) has the requisite power and authority to enter into, and perform its obligations under, this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and capacity to enter into and perform its obligations under this Subscription Agreement.
(b) If Subscriber is an entity, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by the Company, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.
(c) The purchase of the Subscribed Shares hereunder, the compliance by Subscriber with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay Subscriber’s performance of its obligations under this Subscription Agreement, including the purchase of the Subscribed Shares.