Representations and Warranties of the District. District represents and warrants to City that the following statements are true and correct as of the date hereof and as of the Closing, and covenants to execute and deliver to City upon the Closing (as defined in Section 8 of this Exchange Agreement) a certificate reaffirming the following representations or identifying, to the satisfaction of the City, the nature of any changes therein: 2.1 All the documents executed by District which are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall have been duly authorized, executed, and delivered by District and will be legal, valid, and binding obligations of District enforceable against District in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), and will not violate any provisions of any agreement to which District is a party or to which it is subject. 2.2 To the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor District is in violation of any Environmental Laws applicable to the District Property and that the District Property is not subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein). 2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plans, and (ii) except as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL 2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby. 2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5. 2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 2 contracts
Sources: Master Agreement, Master Agreement
Representations and Warranties of the District. 3.01. The District hereby represents and warrants to City that the following statements are shall be true and correct as of the date hereof hereof:
(a) the representations and warranties of the District contained in Article VI of the Agreement and in each of the Related Documents are true and correct on and as of the Closingdate hereof as though made on and as of such date (except to the extent the same expressly relate to an earlier date and except that the representations contained in Section 6.07 of the Agreement shall be deemed to refer to the most recent financial statements of the District delivered to the Bank pursuant to Section 5.05(a) of the Agreement); and
(b) no Default or Event of Default has occurred and is continuing or would result from the execution of the Amended and Restated Note or this Amendment.
3.02. In addition to the representations given in Article VI of the Agreement, the District hereby represents and warrants as follows:
(a) The execution, delivery and performance by the District of the Amended and Restated Note and this Amendment, and covenants to execute and deliver to City upon the Closing (as defined in Section 8 of this Exchange Agreement) a certificate reaffirming performance by the following representations or identifying, to the satisfaction District of the CityAgreement, the nature of any changes therein:
2.1 All the documents executed by District which as amended hereby, are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall within its powers, have been duly authorizedauthorized by all necessary action and do not contravene any law, executedrule or regulation, any judgment, order or decree or any contractual restriction binding on or affecting the District.
(b) No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body, other than the Board of Directors of the District, is required for the due execution, delivery and performance by the District of the Amended and Restated Note, this Amendment or the performance by the District of the Agreement, as amended hereby.
(c) The Amended and Restated Note and this Amendment have been duly executed and delivered by District and will be the Amended and Restated Note, this Amendment and the Agreement, as amended hereby, constitute legal, valid, valid and binding obligations of the District enforceable against the District in accordance with their respective terms terms, except that (except to i) the extent that such enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, liquidation, moratorium and other principles laws relating to or limiting affecting the right enforcement of contracting parties creditors’ rights and remedies generally), and will not violate any provisions of any agreement to which District is a party or to which it is subject.
2.2 To as the knowledge of District and except as disclosed same may be applied in writing by District to City, District represents and warrants to City that neither the District Property nor District is in violation of any Environmental Laws applicable to the District Property and that the District Property is not subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects event of the City Property and to make all inspections and investigations bankruptcy, reorganization, insolvency, liquidation or similar situation of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansDistrict, and (ii) except no representation or warranty is expressed as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 availability of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated herebyequitable remedies.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Representations and Warranties of the District. The District represents and warrants to City that makes the following covenants, representations and warranties to the Lender as of the date of the execution and delivery of this Loan Agreement:
(a) The District is a county water district duly organized and existing under the laws of the State of California.
(b) The District has full legal right, power and authority under the laws of the State to adopt the Resolution and to enter into this Loan Agreement and to enter into the transactions contemplated herein, and to carry out its obligations under the Loan Agreement and the transactions contemplated herein, and to carry out its obligations hereunder and under the Resolution.
(c) With the exception of the pledge of the Net Revenues, RUWAP Funds and the State Loan Proceeds relating to the Loan made hereunder and in connection with any other Parity Debt (in the case of Net Revenues and RUWAP Funds regarding other costs related to the Project), the Net Revenues, RUWAP Funds and the State Loan Proceeds have not otherwise been pledged to make payments, and there are no other liens against the Net Revenues, RUWAP Funds and the State Loan Proceeds, senior to, or on parity with, the Loan Payments.
(d) By all necessary official action, the District has duly adopted the Resolution, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, this Loan Agreement and the consummation by it of all other transactions contemplated by this Loan Agreement and the Resolution. When executed and delivered by the District, this Loan Agreement and the Loan will be in full force and effect and will constitute legal, valid and binding agreements or obligations of the District, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State.
(e) The District’s audited financial statements are true for the period ended June 30, 2016, presents fairly the financial condition of the District and correct the Enterprises as of the date hereof and the results of operation for the period covered thereby. Except as has been disclosed to the Lender, there has been no change in the financial condition of the District or the Enterprises since June 30, 2016, that will materially impair its ability to perform its obligations under this Loan Agreement. All information provided by the District to the Lender with respect to the financial performance of the Enterprises is accurate in all material respects as of its respective date and does not omit any information necessary to make the Closinginformation provided not misleading.
(f) As currently conducted, the District’s activities with respect to the Enterprises are in all material respects in compliance with all applicable laws, administrative regulations of the State of California and of the United States and any agency or instrumentality of either, and covenants any judgment or decree to execute and deliver to City upon which the Closing District is subject.
(as defined g) The District is not in Section 8 any material respect in breach of this Exchange Agreement) a certificate reaffirming the following representations or identifyingdefault under any constitutional provision, to the satisfaction law or administrative regulation of the CityState or of the United States or any agency or instrumentality of either or any judgment or decree or any loan agreement, the nature of any changes therein:
2.1 All the documents executed by District which are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall have been duly authorizedindenture, executedbond, and delivered by District and will be legalnote, validresolution, and binding obligations of District enforceable against District in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and agreement or other principles relating to or limiting the right of contracting parties generally), and will not violate any provisions of any agreement instrument to which the District is a party or to which it is subject.
2.2 To the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor District or any of its property or assets is in violation of any Environmental Laws applicable to the District Property and that the District Property is not otherwise subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits the Resolution and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansthis Loan Agreement), and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the adoption of the Resolution, the execution, delivery and making of the Loan and the execution and delivery of this Loan Agreement and compliance with the District’s obligations herein will not in any material respect conflict with, violate or result in a breach of or constitute a default under, any constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, agreement, mortgage, lease or other instrument to which the District is a party or to which the District or any of its property or assets is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the District or under the terms of any such law, regulation or instruments, except as provided by the Resolution and this Loan Agreement.
(h) No action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, is pending or, to the best of the District’s knowledge, threatened against the District: (i) in any way affecting the existence of the District or in any way challenging the respective powers of the several offices or the titles of the officials of the District to such offices; (ii) affecting or seeking to prohibit, restrain or enjoin the making, execution or delivery of the Loan or this Loan Agreement or the application of the proceeds of the Loan; (iii) in any way contesting or affecting, as to the District, the validity or enforceability of the Resolution, the Loan or this Loan Agreement; (iv) in any way contesting the powers of the District or its authority with respect to make or delivery of the Loan, the adoption of the Resolution, or the execution and delivery of this Loan Agreement; (v) contesting the exclusion from gross income of interest on the Loan for federal income tax purposes; or (vi) in any way contesting or challenging the consummation of the transactions contemplated hereby or thereby or that might materially adversely affect the ability of the District to perform and satisfy its obligations under the Loan or this Loan Agreement; nor to the best of the District’s knowledge is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the proceedings authorizing the Resolution, the Loan or this Loan Agreement or the performance by the District of its obligations thereunder, or the authorization, execution, delivery or performance by the District of the Loan, the Resolution or this Loan Agreement.
(i) The District is not in default, and at no time has defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding.
(j) All consents, approvals, authorizations, orders, licenses or permits of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter, that are required for the due authorization by, or that would constitute a condition precedent to or the absence of which would materially adversely affect the making or accepting of the Loan and the execution, delivery of and performance of this Loan Agreement by the District have been duly obtained (except for such approvals, consents and orders as otherwise expressly may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds, as to which no representation is made).
(k) The District has the legal authority to apply and will apply, or cause to be applied, the proceeds from the Loan as provided in and subject to all of the terms and provisions of the governing law, the Resolution and this Loan Agreement, and will not take or omit to take any action which action or omission will adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Loan.
(l) The District has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that the District is a bond issuer whose arbitrage certificates may not be relied upon.
(m) Any certificate, signed by any official of the District authorized to do so in connection with the transactions described in this Loan Agreement, shall be deemed a representation and warranty by the District to the Lender as to the statements made therein.
(n) Since the most current date of the information, financial or otherwise, supplied by the District to the Lender:
(i) There has been no change in the assets, liabilities, financial position or results of operations of the District which might reasonably be anticipated to cause a Material Adverse Effect;
(ii) The District has not incurred any obligations or liabilities which might reasonably be anticipated to cause a Material Adverse Effect; and
(iii) The District has not (A) incurred any material indebtedness, other than the Loan Payments and trade accounts payable arising in the ordinary course of the District’s business, or (B) guaranteed the indebtedness of any other person.
(o) The RUWAP Agreement is in full force and effect and the District is able to pledge and use the RUWAP Funds for the purposes of making payments on the Loan, as more fully set forth in this Exchange Loan Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, .
(p) The District has applied for the State Loan, expects to use the State Loan Proceeds, if and when received, first for the purpose of making payments under this Loan Agreement and is not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason aware of any breach or inaccuracy of reason why the representation and warranty contained in this Section 2.5State Loan Proceeds could not be used for such purpose.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties of the District. District represents DiStrict repreSentS and warrants warrantS to City that the following statements StatementS are true and correct as aS of the date hereof and as aS of the ClosingCloSing, and covenants covenantS to execute eXecute and deliver to City upon the Closing CloSing (as aS defined in Section 8 of this Exchange thiS EXchange Agreement) a certificate reaffirming the following representations repreSentationS or identifying, to the satisfaction SatiSfaction of the City, the nature of any changes changeS therein:
2.1 All the documents executed documentS eXecuted by District DiStrict which are to be delivered to City at the Closing CloSing (as aS defined in Section 8 of this Exchange thiS EXchange Agreement) shall Shall have been duly authorized, executedeXecuted, and delivered by District DiStrict and will be legal, valid, and binding obligations obligation S of District D iS trict enforceable against District again S t D iS trict in accordance with w ith their respective terms re Spective term S (except e Xcept to the extent e Xtent that such Such enforcement may be limited by applicable bankruptcy, insolvencyinSolvency, moratorium and other principles principle S relating to or limiting lim iting the right of contracting parties partie S generally), and will not violate any provisions proviSionS of any agreement to which District is DiStrict iS a party or to which it is subjectiS Subject.
2.2 To the knowledge of District DiStrict and except as disclosed eXcept aS diScloSed in writing by District DiStrict to City, District represents DiStrict repreSentS and warrants warrantS to City that neither the District DiStrict Property nor District is DiStrict iS in violation of any Environmental Laws LawS applicable to the District DiStrict Property and that the District DiStrict Property is iS not subject Subject to any existingeXiSting, pending or threatened investigation inveStigation by any federal, state State or local governmental authority and is iS not subject Subject to any remedial rem edial obligation or lien under or in connection with any Environmental Law (as aS defined herein).
2.3 [Delete [ D e le te if District is not acquiring City PropertyD iS tric t iS n o t a c q u irin g C ity P ro p e rty ] District acknowledges D iS tric t acknowledge S that (i) prior to the Closing Clo Sing (as a S defined in Section 8 of this Exchange thiS EXchange Agreement), District DiStrict had the opportunity (without any obligation to do soSo), to investigate inveStigate all physicalphySical, legal and economic aspects aSpectS of the City Property and to make all inspections inSpectionS and investigations inveStigationS of the City Property which District deems necessary DiStrict deem S neceSSary or desirable deSirable to protect its interests itS intereStS in acquiring the City Property, including, without limitation, environmental audits auditS and assessmentsaSSeSSmentS, toxic reportsto Xic reportS, surveysSurvey S, investigation inve Stigation of land use u Se and development rightsdevelopm ent rightS, development restrictions developm ent re Striction S and conditions condition S that are or may m ay be imposed im po Sed by governmental agenciesagencieS, soils SoilS and geological reportsreportS, engineering and structural testsStructural te StS, insurance contractsin Surance contractS, contracts contractS for work w ork in progressprogre SS, governmental agreements governm ental agreementS and approvalsapprovalS, architectural plans planS and site plansSite planS, and (ii) except as otherwise expressly set eXcept aS otherwiSe eXpreSSly Set forth in this Exchange thiS EXchange Agreement, neither City, nor anyone acting for or on behalf of City, has haS made any representationrepreSentation, warranty, promise promiSe or statementStatement, express eXpreSS or implied, to DistrictDiStrict, or to anyone acting for or on behalf of District DiStrict concerning the City Property, the use uSe or development thereof. District DiStrict further represents repreSentS and warrants warrantS that, in entering into this Exchange thiS EXchange Agreement, District has DiStrict haS not relied on any representationrepreSentation, warranty, promise promiSe or statementStatement, express eXpreSS or implied, of City, or anyone acting for or on behalf of City, other than as expressly set aS eXpreSSly Set forth in this Exchange thiS EXchange Agreement, and that District DiStrict had the opportunity to verify all matters matterS concerning the City Property prior to the Closing CloSing (as aS defined in Section 8 of this Exchange thiS EXchange Agreement), and that District shall DiStrict Shall acquire the City Property C ity P roperty on District’s own D iStrict’S ow n prior investigation inve Stigation and examination eXamination of the City Property (or District’s DiStrict’S election not to do soSo); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALLAND
2.4 Notwithstanding anything N otw ith S tan d in g an yth in g to the contrary contained th e con trary con tain ed in this Exchange th iS EXchange Agreement, District acknowledges DiStrict acknowledgeS that any written disclosures diScloSureS made by City prior to the Closing CloSing (as aS defined in Section 8 of this Exchange thiS EXchange Agreement) shall constitute Shall conStitute notice to District DiStrict of the matter discloseddiScloSed, and City shall Shall have no liability with respect reSpect thereto if District DiStrict thereafter consummates conSummateS the transaction tranSaction contemplated hereby.
2.5 No brokerage commissioncommiSSion, finder’s ’S fee or other compensation is compenSation iS due or payable by reason reaSon of District’s actions DiStrict’S actionS with respect reSpect to the transaction contemplated tranSaction contem plated hereby. District agrees DiStrict agree S to indemnifyindem nify, defend and hold City harmless harmleSS from and against againSt any lossesloSSeS, damagesdamageS, costs coStS and expenses eXpenSeS (including attorneysattorneyS’ feesfeeS) incurred by City by reason reaSon of any breach or inaccuracy of the representation repreSentation and warranty contained in this thiS Section 2.52.5 .
2.6 The documents documentS relating to the Property that have been made available by District DiStrict for review pursuant purSuant to Section 5.4 of the Master MaSter Agreement are (a) to the knowledge of DistrictDiStrict, all the material documents documentS relating to the Property which District has P roperty w hich D iStrict ha S in its possessionitS po SSe SSion, and (b) are either original documents documentS or true copies copieS of such documents Such documentS in District’s possessionDiStrict’S poSSeSSion.
Appears in 1 contract
Sources: Master Agreement
Representations and Warranties of the District. The District hereby represents and warrants to City that warrants: The District is a Second Class Pennsylvania School District duly organized and existing under the following statements are true and correct as laws of the date hereof and as Commonwealth of Pennsylvania; The District has complied with the relevant provisions of the Closinglaws of the Commonwealth relating to the sale of the Tax Claims and has full power and authority pursuant to the laws of the Commonwealth to enter into this Agreement and consummate all transactions contemplated by this Agreement and to sell and deliver the Tax Claims to ▇▇▇ as provided herein; The District has complied with all provisions of law required to affect a legal and valid Tax Claim of the real property identified in the Tax Claims, including any and all required notice provisions; By Resolution of its School Board, the District has authorized the execution, delivery and due performance of this Agreement and any and all other necessary and related documents, and covenants the taking of any and all present action as may be required on the part of the District to execute carry out, give effect to and deliver consummate the transactions contemplated by this Agreement, and all present approvals, whether governmental or otherwise, necessary in connection with the foregoing have been received; The Resolution has been duly enacted by the District's Board pursuant to City upon applicable law and is in full force and effect and has not been modified, amended, revoked or rescinded since the Closing (date of its enactment; Neither the full faith and credit nor the taxing power of the Commonwealth nor the District is pledged for the payment of the principal and interest evidenced and represented by the note except as defined provided for in Section 8 the repurchase and refund sections set forth above; Except as disclosed on Exhibit 4.01(h) annexed hereto, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or threatened against or affecting the District, or to the best knowledge of the District, any basis therefore, wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated hereby or which, in any way would adversely affect the validity of this Exchange Agreement) , or instrument to which the District is a certificate reaffirming party and which is used or contemplated for use in consummation of the following representations transactions contemplated hereby; The execution and delivery of this Agreement and the other necessary and related documents, and compliance with the provisions thereof, will not conflict with or identifyingconstitute, on the part of the District, a violation of, breach of or default under its charter or any statute, indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which the District is a party or by which the District is bound, or, to the satisfaction knowledge of the CityDistrict, the nature any order, rule or regulation of any changes therein:
2.1 All court or governmental agency or body having jurisdiction over the documents executed by District which or any of its activities or properties, and all present consents, approvals, authorizations and orders of governmental or regulatory authorities are to be delivered to City at required for the Closing (as defined in Section 8 consummation of this Exchange Agreement) shall the transactions contemplated thereby have been duly authorizedobtained, executedit being understood, however, that the District will transfer said payments to ▇▇▇ upon their receipt for the use of ▇▇▇ as contemplated herein (or have such payments deposited into a lock box account with Firstrust) and delivered by it being further understood that at such time that payments can be made directly to ▇▇▇ because of an amendment to the RETSL or otherwise, then the District and ▇▇▇ shall reasonably cooperate with each other to effect such direct payments; This Agreement, when executed and delivered, will be a legal, valid, valid and binding obligations obligation of the District enforceable against District in accordance with their respective terms (its terms, except to the extent that as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights in general and other by general equity principles relating to (regardless of whether such enforcement is considered in a proceeding in equity or limiting the right of contracting parties generallyat law), and will not violate any provisions of any agreement to which District is a party or to which it is subject.
2.2 ; To the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor without having undertaken any investigation, no Tax Claim certificate constituting a portion of the Tax Claims relates to property which is the site of an existing or potential environmental hazard; The organizational documents of the District is are in violation full force and effect; The District has legal title to the Tax Claims free and clear without liens or encumbrances of any Environmental Laws applicable kind affecting the District's ownership thereof; The conveyance of the Tax Claims to ▇▇▇ pursuant to this Agreement is a valid transfer of the District's ownership interest therein, subject to the District Property and that the District Property is not subject to any existing, pending right of cancellation or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (refund as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plans, and (ii) except as otherwise expressly more specifically set forth herein; and Each Tax Claim delivered pursuant to this Agreement is correctly and accurately identified in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereofTax Claim List. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the ▇▇▇ may rely conclusively upon such representation and warranty contained in this Section 2.5the Tax Claim List without independent investigation.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Representations and Warranties of the District. District represents and The District, by its acceptance hereof, represents, warrants to City that the following statements are true and correct as of the date hereof and as of the Closing, and covenants to execute the Underwriters that:
(a) The Series Resolution was duly adopted by the Board and deliver to City upon the District has, and at the date of the Closing will have, full legal right, power and authority (as defined in Section 8 of i) to enter into this Exchange Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture, (ii) a certificate reaffirming to sell and cause the following representations or identifying, Bonds to be issued and delivered to the satisfaction of Underwriters as provided herein, and (iii) to carry out and consummate the Citytransactions contemplated by this Purchase Agreement, the nature of any changes therein:
2.1 All Continuing Disclosure Agreement and the documents executed by Official Statement; and the District which are to be delivered to City has complied, and will at the Closing be in compliance in all respects, with the terms of the Act and with the obligations on its part contained in this Purchase Agreement.
(as defined b) The District is duly organized and existing municipal conservancy district under the laws of the State of South Dakota, with full legal right, power and authority to undertake the transactions and activities described in Section 8 and contemplated by the Preliminary Official Statement, the Official Statement and this Purchase Agreement, including without limitation the adoption of this Exchange Agreement) shall have been duly authorized, executedthe Series Resolution and the Master Trust Indenture, and delivered by the other documents and agreements described therein and herein as documents and agreements to which it is a party.
(c) The District hereby ratifies and will be approves the Preliminary Official Statement, and hereby authorizes and approves the Official Statement substantially in the form of the Preliminary Official Statement; this Purchase Agreement constitutes a legal, validvalid and binding obligation of the District; and the Bonds, when executed and delivered to the Underwriters, will constitute legal, valid and binding obligations of the District.
(d) The adoption of the Series Resolution and execution and delivery by the District enforceable against of this Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture (or any other instrument to which the District is a party used or contemplated for use in accordance the consummation of the transactions contemplated hereby or by the Official Statement, the Series Resolution or the Master Trust Indenture), and compliance with their respective terms the provisions of each such instrument, has not constituted and will not conflict with or constitute a breach of, or default under, any other resolution, indenture, commitment, agreement or other instrument to which the District is a party or by which it is bound, or under any provision of the South Dakota Constitution or any existing law, rule, regulation, ordinance, judgment, order or decree to which the District or its properties is subject.
(except e) As of the date thereof, the Preliminary Official Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this paragraph (d) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing by or on behalf of the Underwriters expressly for use in the Preliminary Official Statement.
(f) At the time of the District’s acceptance hereof and (unless an event occurs of the nature described in subparagraph (f) of this paragraph 2) at all times subsequent thereto up to and including the Closing Date, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) If, after the date of this Purchase Agreement and during the period up to a date twenty-five (25) days following the End of the Underwriting Period (hereinafter defined), any event shall occur to the knowledge of the District which might cause the Official Statement to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the District shall notify the Underwriters, and if in the opinion of the District or the Underwriters such event requires the preparation and publication of a supplement or amendment to the Official Statement, the District shall at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriter and its counsel and furnish to the Underwriters a reasonable number of copies of such supplement or amendment. For purposes of this Purchase Agreement, “End of the Underwriting Period” shall mean the date on which the End of the Underwriting Period for the Bonds has occurred under SEC Rule 15c2-12.
(h) If the Official Statement is supplemented or amended, at the time of each such supplement or amendment, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) The District shall furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request to (i) qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions in the United States as the Underwriters may designate, and (ii) determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions and the District shall use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided, however, that the District shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction.
(j) Any certificate signed by an official of the District and delivered to the Underwriters shall be deemed to be a representation and warranty by the District to the Underwriters as to the statements made therein.
(k) The District acknowledges and agrees that (i) the transactions contemplated by this Purchase Agreement are arm’s-length, commercial transactions between the District and the Underwriters in which the Underwriters are acting solely as a principal and are not acting as a municipal advisor (within the meaning of Section 15B of the Securities Exchange Act), financial advisor or fiduciary to the District, (ii) the Underwriters have not assumed (individually or collectively) any advisory or fiduciary responsibility to the District with respect to the transactions contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether the Underwriters, or any affiliates of the Underwriters, have provided other services or is currently providing other services to the District on other matters), (iii) the only obligations the Underwriters have to the District with respect to the transactions contemplated hereby are set forth in this Purchase Agreement and (iv) the District has consulted with its own financial and municipal, legal, accounting, tax and other advisors, as applicable, to the extent that such enforcement may be limited by it has deemed appropriate.
(l) The District has entered or will enter into the Continuing Disclosure Agreement and, unless otherwise described in the Official Statement or set forth below, the District has not failed during the previous five years to comply in all material respects with any previous undertakings in a written continuing disclosure contract or agreement under SEC Rule 15c2-12.
(m) The District is not in breach of or default under any applicable bankruptcyconstitutional provision, insolvencylaw or administrative regulation of the State of South Dakota or in the United States or any applicable judgment or decree or any loan agreement, moratorium and indenture, bond, note, resolution, agreement or other principles relating to or limiting the right of contracting parties generally), and will not violate any provisions of any agreement instrument to which the District is a party or to which it the District is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice or both, would constitute a default or event of default under any such instrument.
2.2 To the knowledge of District and except as disclosed in writing by District to City(n) No consent, District represents and warrants to City that neither the District Property nor District is in violation of approval, authorization or order of, or filing, registration or declaration with, any Environmental Laws applicable to the District Property and that the District Property is court or governmental agency or body which shall not subject to any existing, pending have been obtained on or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement)is required for the issuance, District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects delivery or sale of the City Property and to make all inspections and investigations Bonds or the consummation of the City Property which District deems necessary other transactions effected or desirable contemplated herein.
(o) There is no action, suit, proceeding or investigation at law or in equity before or by any court, public body or board pending or threatened that seeks to protect its interests in acquiring restrain or enjoin the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation issuance or sale of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plans, and (ii) except as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to Districtthe Bonds, or in any way contesting the validity of or the power of the District to anyone acting for or on behalf authorize the issuance of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of CityBonds, or anyone acting for that seeks to restrain or on behalf enjoin the execution and delivery of Citydocuments in connection therewith, other than as expressly set forth in this Exchange Agreement, and that District had or contest the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination existence or power of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations and Warranties of the District. As an inducement to the Bank to execute this Agreement and to issue the Letter of Credit, the District hereby represents and warrants to City the Bank that:
(a) The District is a governmental authority created by Article IX, Section 4 of the Florida Constitution and has the legal power and authority to enter into and perform this Agreement and each of the Related Documents to which it is a party to fulfill its obligations set forth herein and in each of the Related Documents to which it is a party and to carry out the transactions contemplated hereby and thereby. The District has all requisite legal power to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted and is duly qualified to do business and in good standing in each jurisdiction where it owns, leases or operates any real or personal property or is otherwise required to qualify in order to carry out its business as now conducted and as proposed to be conducted. At the date of this Agreement, the District does not have any subsidiaries.
(b) The execution, delivery and performance of this Agreement, the Related Documents and the other documents required to be executed by the District pursuant hereto
(i) have been duly authorized by all necessary corporate and other action, (ii) will not require any consent of any third party not obtained prior to the date hereof, and (iii) will not conflict with, violate the provisions of, or cause a default or constitute an event which, with the passage of time or giving of notice or both, could constitute a default on the part of the District under any contract, agreement, and, to the best of the District’s knowledge, any law, rule, order, ordinance, franchise, instrument or other document, or result in the imposition of any lien or encumbrance on any property or assets of the District. This Agreement, the Related Documents and the other documents delivered to the Bank by the District pursuant hereto have been duly executed and delivered by the District and are the legal, valid and binding obligations of the District, enforceable in accordance with their respective terms; subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor’s rights heretofore or hereafter enacted.
(c) There are no actions, suits, proceedings or investigations pending or, to the knowledge of the District threatened, anticipated or contemplated (nor, to the knowledge of the District is there any basis therefor), against or affecting the District before any court or governmental department, commission, board, bureau, agency or instrumentality which could prevent or hinder the consummation of the transactions contemplated hereby or call into question the validity of this Agreement, any of the Related Documents or any other instrument provided for or contemplated by this Agreement or any action taken or to be taken in connection with the transactions contemplated hereby or thereby, or which, in any single case or in the aggregate, might result in any material adverse change in the business, prospects, condition, affairs or operations of the District or any material impairment of the right or ability of the District to carry on its operations as now conducted and as proposed to be conducted.
(d) The District is not in violation of any term of any indenture or judgment, decree or order, or any other material instrument, contract or agreement applicable to it.
(e) To the best of the District’s knowledge, the District is in compliance with all requirements of law, federal, state and local, and all requirements of governmental bodies or agencies having or claiming jurisdiction over it, the conduct of its business, the use of its properties and assets, and all Premises occupied by it, failure to comply with any of which could (singly or in the aggregate with all other such failures) have a material adverse effect on the business, prospects or financial condition of the District. Without limiting the foregoing, the District has all Permits needed for the conduct of its business and the use of its properties and all Premises occupied by it, as now conducted, owned and used or as proposed to be conducted, owned and used. No 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, is or will be necessary to the valid execution or delivery of, or for the performance by the District of its obligations under, this Agreement, any of the Related Documents or any other instrument provided for or contemplated by this Agreement.
(f) The District hereby represents that it is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and that no portion of the proceeds of any Bonds or any Drawing will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
(g) The District has good and clear, record and marketable title to its real estate and good and merchantable title to its other assets now carried on its books, free of any mortgages, pledges, charges, liens, security interests or other encumbrances; provided however, it is understood that the District has entered into certain leasing arrangements with the St. Lucie School Board Leasing Corporation relative to the lease purchase of certain educational facilities. The District enjoys peaceful and undisturbed possession under all leases under which it is operating, and all said leases are valid and subsisting and in full force and effect.
(h) The audited financial statements of the District for the fiscal year ended June 30, 2010, heretofore delivered to the Bank, fairly present the financial condition of the District as at the date thereof and for the period covered thereby, and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the relevant periods. The District has no liability, contingent or otherwise, not disclosed in the aforesaid financial statements or in any notes thereto that could materially adversely affect the financial condition of the District. The following representations are true on the Date of Issuance: since June 30, 2010,
(A) there has been no material adverse change in the business, assets or condition, financial or otherwise, of the District; (B) neither the business, condition or operations of the District nor any of its properties or assets has been materially adversely affected as the result of any legislative or regulatory change, any revocation or change in any franchise, license or right to do business, or any other event or occurrence, whether or not insured against; (C) except as heretofore disclosed in writing to the Bank, the District has not experienced any material controversy or problem with its employees or with any labor organization; and (D) except as heretofore disclosed in writing to the Bank, the District has not entered into any material transaction other than in the ordinary course of its business.
(i) The District is not a party to any contract or agreement, the terms of which now have or, as far as can be reasonably foreseen, may have a material adverse effect on the financial condition, business or properties of the District or its ability to carry out its agreements under this Agreement.
(j) The District and the Premises are in compliance in all material respects with all Environmental Laws and no Environmental Event has occurred.
(k) As of the date hereof, no part of the Premises is currently damaged by fire or other casualty.
(l) There is no condemnation or similar proceeding pending with respect to or affecting any of the Premises, and the District is not aware that any such proceeding is contemplated.
(m) Neither this Agreement, nor the financial statements referred to herein, nor any other agreement, document, certificate or written statement furnished to the Bank or to the Bank’s counsel by or on behalf of the District in connection with the transactions contemplated by this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading. There is no fact within the special knowledge of any of the officers of the District which has not been disclosed herein or in writing by them to the Bank and which materially adversely affects, or in the future in their opinion may, insofar as they can now reasonably foresee, materially adversely affect the business, properties, assets or condition, financial or other, of the District or its ability to carry out its agreements under this Agreement.
(n) The District does not enjoy any defense on the grounds of sovereign immunity with respect to the enforcement of its obligations under this Agreement or any other Related Document.
(o) The District is a governmental authority created by Article IX, Section 4 of the Florida Constitution, and, as such, there is no person who owns a controlling interest in or otherwise controls the District.
(p) The representations and warranties of the District contained in the Related Documents are hereby incorporated herein by reference; such representations and warranties are true and correct as of the date hereof and as of the Closing, and covenants to execute and deliver to City upon the Closing (as defined in Section 8 of this Exchange Agreement) a certificate reaffirming the following representations or identifying, to the satisfaction of the City, the nature of any changes therein:
2.1 All the documents executed by District which are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall have been duly authorized, executed, and delivered by District and will be legal, valid, and binding obligations of District enforceable against District in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of contracting parties generally), and will not violate any provisions of any agreement to which District is a party or to which it is subjecthereof.
2.2 To the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor District is in violation of any Environmental Laws applicable to the District Property and that the District Property is not subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plans, and (ii) except as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Reimbursement Agreement
Representations and Warranties of the District. District represents and The District, by its acceptance hereof, represents, warrants to City that the following statements are true and correct as of the date hereof and as of the Closing, and covenants to execute the Underwriters that:
(a) The Series Resolution was duly adopted by the Board and deliver to City upon the District has, and at the date of the Closing will have, full legal right, power and authority (as defined in Section 8 of i) to enter into this Exchange Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture, (ii) a certificate reaffirming to sell and cause the following representations or identifying, Bonds to be issued and delivered to the satisfaction of Underwriters as provided herein, and (iii) to carry out and consummate the Citytransactions contemplated by this Bond Purchase Agreement, the nature of any changes therein:
2.1 All Continuing Disclosure Agreement and the documents executed by Official Statement; and the District which are to be delivered to City has complied, and will at the Closing be in compliance in all respects, with the terms of the Act and with the obligations on its part contained in this Bond Purchase Agreement.
(as defined in Section 8 of this Exchange Agreementb) shall have been duly authorized, executedThe District hereby ratifies and approves the Preliminary Official Statement, and delivered by District hereby authorizes and will be approves the Official Statement substantially in the form of the Preliminary Official Statement; this Bond Purchase Agreement constitutes a legal, validvalid and binding obligation of the District; and the Bonds, when executed and delivered to the Underwriters, will constitute legal, valid and binding obligations of the District.
(c) The adoption of the Series Resolution and execution and delivery by the District enforceable against of this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture (or any other instrument to which the District is a party used or contemplated for use in accordance with their respective terms (except to the extent that such enforcement may be limited consummation of the transactions contemplated hereby or by applicable bankruptcythe Official Statement, insolvency, moratorium and other principles relating to the Series Resolution or limiting the right of contracting parties generallyMaster Trust Indenture), and compliance with the provisions of each such instrument, has not constituted and will not violate conflict with or constitute a breach of, or default under, any provisions of any other resolution, indenture, commitment, agreement or other instrument to which the District is a party or by which it is bound, or under any provision of the South Dakota Constitution or any existing law, rule, regulation, ordinance, judgment, order or decree to which it the District or its properties is subject.
2.2 To (d) As of the date thereof, the Preliminary Official Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this paragraph (d) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing by or on behalf of the Underwriters expressly for use in the Preliminary Official Statement.
(e) At the time of the District’s acceptance hereof and (unless an event occurs of the nature described in subparagraph (f) of this paragraph 2) at all times subsequent thereto up to and including the Closing Date, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) If, after the date of this Bond Purchase Agreement and during the period up to a date twenty-five (25) days following the End of the Underwriting Period (hereinafter defined), any event shall occur to the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor which might cause the Official Statement to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the District is shall notify the Underwriters, and if in violation the opinion of any Environmental Laws applicable the District or the Underwriters such event requires the preparation and publication of a supplement or amendment to the District Property and that Official Statement, the District Property is not subject shall at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriters and its counsel and furnish to any existingthe Underwriters a reasonable number of copies of such supplement or amendment. For purposes of this Bond Purchase Agreement, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien “End of the Underwriting Period” shall mean the date on which the End of the Underwriting Period for the Bonds has occurred under or in connection with any Environmental Law (as defined herein)SEC Rule 15c2-12.
2.3 [Delete if (g) If the Official Statement is supplemented or amended, at the time of each such supplement or amendment, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The District is not acquiring City Property] District acknowledges that shall furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request to (i) prior to qualify the Closing (Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions in the United States as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or Underwriters may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansdesignate, and (ii) except determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions and the District shall use its best efforts to continue such qualifications in effect so long as otherwise expressly set forth required for the distribution of the Bonds; provided, however, that the District shall not be required to execute a general or special consent to service of process or qualify to do business in this Exchange Agreement, neither City, nor anyone acting for connection with any such qualification or on behalf determination in any jurisdiction.
(i) Any certificate signed by an official of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of the District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior delivered to the Closing (as defined in Section 8 of this Exchange Agreement), and that District Underwriters shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not be deemed to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the be a representation and warranty contained in this Section 2.5.
2.6 The documents relating by the District to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) Underwriters as to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possessionstatements made therein.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations and Warranties of the District. District represents and The District, by its acceptance hereof, represents, warrants to City that the following statements are true and correct as of the date hereof and as of the Closing, and covenants to execute the Underwriters that:
(a) The Series Resolution was duly adopted by the Board and deliver to City upon the District has, and at the date of the Closing will have, full legal right, power and authority (as defined in Section 8 of i) to enter into this Exchange Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture, (ii) a certificate reaffirming to sell and cause the following representations or identifying, Bonds to be issued and delivered to the satisfaction of Underwriters as provided herein, and (iii) to carry out and consummate the Citytransactions contemplated by this Bond Purchase Agreement, the nature of any changes therein:
2.1 All Continuing Disclosure Agreement and the documents executed by Official Statement; and the District which are to be delivered to City has complied, and will at the Closing be in compliance in all respects, with the terms of the Act and with the obligations on its part contained in this Bond Purchase Agreement.
(as defined in Section 8 of this Exchange Agreementb) shall have been duly authorized, executedThe District hereby ratifies and approves the Preliminary Official Statement, and delivered by District hereby authorizes and will be approves the Official Statement substantially in the form of the Preliminary Official Statement; this Bond Purchase Agreement constitutes a legal, validvalid and binding obligation of the District; and the Bonds, when executed and delivered to the Underwriters, will constitute legal, valid and binding obligations of the District.
(c) The adoption of the Series Resolution and execution and delivery by the District enforceable against of this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture (or any other instrument to which the District is a party used or contemplated for use in accordance with their respective terms (except to the extent that such enforcement may be limited consummation of the transactions contemplated hereby or by applicable bankruptcythe Official Statement, insolvency, moratorium and other principles relating to the Series Resolution or limiting the right of contracting parties generallyMaster Trust Indenture), and compliance with the provisions of each such instrument, has not constituted and will not violate conflict with or constitute a breach of, or default under, any provisions of any other resolution, indenture, commitment, agreement or other instrument to which the District is a party or by which it is bound, or under any provision of the South Dakota Constitution or any existing law, rule, regulation, ordinance, judgment, order or decree to which it the District or its properties is subject.
2.2 To (d) As of the date thereof, the Preliminary Official Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this paragraph (d) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing by or on behalf of the Underwriters expressly for use in the Preliminary Official Statement.
(e) At the time of the District’s acceptance hereof and (unless an event occurs of the nature described in subparagraph (f) of this paragraph 2) at all times subsequent thereto up to and including the Closing Date, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) If, after the date of this Bond Purchase Agreement and during the period up to a date twenty-five (25) days following the End of the Underwriting Period (hereinafter defined), any event shall occur to the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor which might cause the Official Statement to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the District is shall notify the Underwriters, and if in violation the opinion of any Environmental Laws applicable the District or the Underwriters such event requires the preparation and publication of a supplement or amendment to the District Property and that Official Statement, the District Property is not subject shall at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriters and its counsel and furnish to any existingthe Underwriters a reasonable number of copies of such supplement or amendment. For purposes of this Bond Purchase Agreement, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien “End of the Underwriting Period” shall mean the date on which the End of the Underwriting Period for the Bonds has occurred under or in connection with any Environmental Law (as defined herein)SEC Rule 15c2-12.
2.3 [Delete if (g) If the Official Statement is supplemented or amended, at the time of each such supplement or amendment, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The District is not acquiring City Property] District acknowledges that shall furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request to (i) prior to qualify the Closing (Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions in the United States as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or Underwriters may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansdesignate, and (ii) except determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions and the District shall use its best efforts to continue such qualifications in effect so long as otherwise required for the distribution of the Bonds; provided, however, that the District shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction.
(i) Any certificate signed by an official of the District and delivered to the Underwriters shall be deemed to be a representation and warranty by the District to the Underwriters as to the statements made therein.
(j) The District acknowledges and agrees that: (i) the transactions contemplated by this Bond Purchase Agreement are arm’s length, commercial transactions between the District and the Underwriters in which the Underwriters are acting solely as principals and are not acting as municipal advisors, financial advisors or fiduciaries to the District, irrespective of whether any Underwriters or any of its affiliates have provided other services or is currently providing other services to the District on other matters; (ii) the only obligations the Underwriters have to the District with respect to the transactions contemplated hereby expressly are set forth in this Exchange AgreementBond Purchase Agreement and any other additional agreements that the Underwriters are a party to in connection with the transaction; and (iii) the District has consulted its own legal, neither Cityaccounting, nor anyone acting for or on behalf of Citytax, has made any representationfinancial and other advisors, warranty, promise or statement, express or impliedas applicable, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District extent it has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated herebydeemed appropriate.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations and Warranties of the District. 3.01. The District hereby represents and warrants to City that the following statements are shall be true and correct as of the date hereof hereof:
(a) the representations and warranties of the District contained in Article VI of the Agreement and in each of the Related Documents are true and correct on and as of the Closingdate hereof as though made on and as of such date (except to the extent the same expressly relate to an earlier date and except that the representations contained in Section 6.07 of the Agreement shall be deemed to refer to the most recent financial statements of the District delivered to the Bank pursuant to Section 5.05(a) of the Agreement); and
(b) no Default or Event of Default has occurred and is continuing or would result from the execution of the Amended and Restated Note or this Amendment.
3.02. In addition to the representations given in Article VI of the Agreement, the District hereby represents and warrants as follows:
(a) The execution, delivery and performance by the District of the Amended and Restated Note and this Amendment, and covenants to execute and deliver to City upon the Closing (as defined in Section 8 of this Exchange Agreement) a certificate reaffirming performance by the following representations or identifying, to the satisfaction District of the CityAgreement, the nature of any changes therein:
2.1 All the documents executed by District which as amended hereby, are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall within its powers, have been duly authorizedauthorized by all necessary action and do not contravene any law, executedrule or regulation, any judgment, order or decree or any contractual restriction binding on or affecting the District.
(b) No authorization, approval or other action by, and delivered no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the District of the Amended and will be Restated Note, this Amendment or the performance by the District of the Agreement, as amended hereby.
(c) The Amended and Restated Note, this Amendment and the Agreement, as amended hereby, constitute legal, valid, valid and binding obligations of the District enforceable against the District in accordance with their respective terms terms, except that (except to i) the extent that such enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, liquidation, moratorium and other principles laws relating to or limiting affecting the right enforcement of contracting parties creditors’ rights and remedies generally), and will not violate any provisions of any agreement to which District is a party or to which it is subject.
2.2 To as the knowledge of District and except as disclosed same may be applied in writing by District to City, District represents and warrants to City that neither the District Property nor District is in violation of any Environmental Laws applicable to the District Property and that the District Property is not subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein).
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects event of the City Property and to make all inspections and investigations bankruptcy, reorganization, insolvency, liquidation or similar situation of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansDistrict, and (ii) except no representation or warranty is expressed as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 availability of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated herebyequitable remedies.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Credit Agreement
Representations and Warranties of the District. District represents and The District, by its acceptance hereof, represents, warrants to City that the following statements are true and correct as of the date hereof and as of the Closing, and covenants to execute the Underwriters that:
(a) The Series Resolution was duly adopted by the Board and deliver to City upon the District has, and at the date of the Closing will have, full legal right, power and authority (as defined in Section 8 of i) to enter into this Exchange Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture, (ii) a certificate reaffirming to sell and cause the following representations or identifying, Bonds to be issued and delivered to the satisfaction of Underwriters as provided herein, and (iii) to carry out and consummate the Citytransactions contemplated by this Bond Purchase Agreement, the nature of any changes therein:
2.1 All Continuing Disclosure Agreement and the documents executed by Official Statement; and the District which are to be delivered to City has complied, and will at the Closing be in compliance in all respects, with the terms of the Act and with the obligations on its part contained in this Bond Purchase Agreement.
(as defined in Section 8 of this Exchange Agreementb) shall have been duly authorized, executedThe District hereby ratifies and approves the Preliminary Official Statement, and delivered by District hereby authorizes and will be approves the Official Statement substantially in the form of the Preliminary Official Statement; this Bond Purchase Agreement constitutes a legal, validvalid and binding obligation of the District; and the Bonds, when executed and delivered to the Underwriters, will constitute legal, valid and binding obligations of the District.
(c) The adoption of the Series Resolution and execution and delivery by the District enforceable against of this Bond Purchase Agreement, the Continuing Disclosure Agreement and the Master Trust Indenture (or any other instrument to which the District is a party used or contemplated for use in accordance with their respective terms (except to the extent that such enforcement may be limited consummation of the transactions contemplated hereby or by applicable bankruptcythe Official Statement, insolvency, moratorium and other principles relating to the Series Resolution or limiting the right of contracting parties generallyMaster Trust Indenture), and compliance with the provisions of each such instrument, has not constituted and will not violate conflict with or constitute a breach of, or default under, any provisions of any other resolution, indenture, commitment, agreement or other instrument to which the District is a party or by which it is bound, or under any provision of the South Dakota Constitution or any existing law, rule, regulation, ordinance, judgment, order or decree to which it the District or its properties is subject.
2.2 To (d) As of the date thereof, the Preliminary Official Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this paragraph (d) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing by or on behalf of the Underwriters expressly for use in the Preliminary Official Statement.
(e) At the time of the District’s acceptance hereof and (unless an event occurs of the nature described in subparagraph (f) of this paragraph 2) at all times subsequent thereto up to and including the Closing Date, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) If, after the date of this Bond Purchase Agreement and during the period up to a date twenty-five (25) days following the End of the Underwriting Period (hereinafter defined), any event shall occur to the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor which might cause the Official Statement to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the District is shall notify the Underwriters, and if in violation the opinion of any Environmental Laws applicable the District or the Underwriters such event requires the preparation and publication of a supplement or amendment to the District Property and that Official Statement, the District Property is not subject shall at its expense supplement or amend the Official Statement in a form and manner approved by the Underwriters and its counsel and furnish to any existingthe Underwriters a reasonable number of copies of such supplement or amendment. For purposes of this Bond Purchase Agreement, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien “End of the Underwriting Period” shall mean the date on which the End of the Underwriting Period for the Bonds has occurred under or in connection with any Environmental Law (as defined herein)SEC Rule 15c2-12.
2.3 [Delete if (g) If the Official Statement is supplemented or amended, at the time of each such supplement or amendment, the Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The District is not acquiring City Property] District acknowledges that shall furnish such information, execute such instruments and take such other action in cooperation with the Underwriters as the Underwriters may reasonably request to (i) prior to qualify the Closing (Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions in the United States as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or Underwriters may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plansdesignate, and (ii) except determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions and the District shall use its best efforts to continue such qualifications in effect so long as otherwise expressly required for the distribution of the Bonds; provided, however, that the District shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction.
(i) Any certificate signed by an official of the District and delivered to the Underwriters shall be deemed to be a representation and warranty by the District to the Underwriters as to the statements made therein.
(j) The District acknowledges and agrees that (i) the purchase and sale of the Bonds pursuant to this Bond Purchase Agreement is an arm’s-length, commercial transaction between the District and the Underwriters in which each Underwriter is acting solely as a principal and is not acting as a municipal advisor (within the meaning of Section 15B of the Securities Exchange Act), financial advisor or fiduciary to the District, (ii) the Underwriters have not assumed (individually or collectively) any advisory or fiduciary responsibility to the District with respect to this Bond Purchase Agreement, the offering of the Bonds and the discussions, undertakings and procedures leading thereto (irrespective of whether any Underwriter, or any affiliate of an Underwriter, has provided other services or is currently providing other services to the District on other matters), (iii) the only obligations the Underwriters have to the District with respect to the transactions contemplated hereby are set forth in this Exchange AgreementBond Purchase Agreement and the Agreement for Investment Banking Services between the Representative and the District, neither City(iv) the Underwriters have financial and other interests that differ from those of the District and (v) the District has consulted with its own legal, nor anyone acting for or on behalf of Cityaccounting, has made any representationtax, warrantyfinancial and other advisors, promise or statement, express or impliedas applicable, to Districtthe extent it has deemed appropriate.
(k) The District has entered or will enter into the Continuing Disclosure Agreement and, unless otherwise described in the Official Statement or to anyone acting for or on behalf of District concerning the City Propertyset forth below, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on failed during the previous five years to comply in all material respects with any representation, warranty, promise previous undertakings in a written continuing disclosure contract or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated herebyagreement under SEC Rule 15c2-12.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations and Warranties of the District. The District represents and warrants to City that the following statements are true Purchaser that:
(a) The District is a school district organized and correct as existing under the Constitution and the laws of the date State of California (the “State”), and has all necessary power and authority to enter into and perform its duties under this Agreement, the Site and Facility Lease and the Lease Agreement (collectively, the “District Documents”).
(b) Neither the execution and delivery of the District Documents, nor the execution of this Agreement, and compliance with the provisions on the District’s part contained therein, nor the consummation of any other of the transactions herein and therein contemplated, nor the fulfillment of the terms hereof and thereof, materially conflicts with or constitutes a material breach of or default under nor materially contravenes any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the District is a party or is otherwise subject, nor does any such execution, delivery, adoption or compliance result in the security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the District under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the District Documents.
(c) The District Documents have been duly authorized by the District, and, assuming due authorization, execution and delivery by the other parties thereto, will constitute legal, valid and binding agreements of the District enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles if sought and by the limitations on legal remedies imposed on actions against cities in the State of California.
(d) There is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory agency having jurisdiction over the District required for the execution and delivery of the District Documents or the consummation by the District of the other transactions contemplated by the District Documents.
(e) There is no action, suit, proceeding, inquiry or investigation before or by any court or federal, state, municipal or other Governmental Authority pending and notice of which has been served on the District or, to the knowledge of the District after reasonable investigation, threatened against or affecting the District or the assets, properties or operations of the District which, if determined adversely to the District or its interests, would have a Material Adverse Effect upon the consummation of the transactions contemplated by or the validity of the District Documents or upon the financial condition, assets, properties or operations of the District, and the District is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other Governmental Authority, which default might have consequences that would have a Material Adverse Effect on the consummation of the transactions contemplated by this Lease Agreement, or the financial condition, assets, properties or operations of the District and on the District’s ability to make Lease Payment.
(f) By official action of the District prior to or concurrently with the execution hereof, the District has duly authorized and approved the execution and delivery of, and the performance by the District of the obligations on its part contained in the District Documents and the consummation by it of all other transactions contemplated by this Agreement.
(g) The District is not in breach of or default under any material applicable law or administrative regulation of the State of California or the United States or any material applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the District is a party or is otherwise subject and in connection with which the District is obligated to make payments from its own funds, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument the consequence of which could be to materially and adversely affect the performance of the District under the District Documents.
(h) The District will deliver all opinions, certificates, letters and other instruments and documents reasonably required by the Purchaser and this Agreement.
(i) Any certificate of the District delivered to the Purchaser shall be deemed a representation and warranty by the District to the Purchaser as to the statements made therein.
(j) As of the time of acceptance hereof and as of the ClosingClosing Date the District does not and will not have outstanding any indebtedness which is secured by a lien on the District’s general fund or the Property, except as disclosed to the Purchaser.
(k) The financial statements of, and covenants other financial information regarding the District delivered to execute the Purchaser fairly present the financial position and deliver to City upon results of the Closing operations of the District as of the dates and for the periods therein set forth and the audited financial statements have been prepared in accordance with generally accepted accounting principles consistently applied.
(as defined in Section 8 l) Between the date of this Exchange Agreement and the date of Closing Date, the District will not, without the prior written consent of the Purchaser, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by a lien on the District’s general fund.
(m) The District does not enjoy any rights of immunity on the grounds of sovereign immunity in respect of its obligations under the District Agreements or the Assignment Agreement) a certificate reaffirming . To the following representations extent the District has or identifyinghereafter may acquire under any applicable law any rights to immunity from legal proceedings on the grounds of sovereignty, the District hereby waives, to the satisfaction extent permitted by law, such rights to immunity for itself in respect of the City, the nature of any changes therein:
2.1 All the documents executed by District which are to be delivered to City at the Closing (as defined in Section 8 of this Exchange Agreement) shall have been duly authorized, executed, and delivered by District and will be legal, valid, and binding its obligations of District enforceable against District in accordance with their respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to arising under or limiting the right of contracting parties generally), and will not violate any provisions of any agreement to which District is a party or to which it is subject.
2.2 To the knowledge of District and except as disclosed in writing by District to City, District represents and warrants to City that neither the District Property nor District is in violation of any Environmental Laws applicable related to the District Property and that Documents or the District Property is not subject to any existing, pending or threatened investigation by any federal, state or local governmental authority and is not subject to any remedial obligation or lien under or in connection with any Environmental Law (as defined herein)Assignment Agreement.
2.3 [Delete if District is not acquiring City Property] District acknowledges that (i) prior to the Closing (as defined in Section 8 of this Exchange Agreement), District had the opportunity (without any obligation to do so), to investigate all physical, legal and economic aspects of the City Property and to make all inspections and investigations of the City Property which District deems necessary or desirable to protect its interests in acquiring the City Property, including, without limitation, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, soils and geological reports, engineering and structural tests, insurance contracts, contracts for work in progress, governmental agreements and approvals, architectural plans and site plans, and (ii) except as otherwise expressly set forth in this Exchange Agreement, neither City, nor anyone acting for or on behalf of City, has made any representation, warranty, promise or statement, express or implied, to District, or to anyone acting for or on behalf of District concerning the City Property, the use or development thereof. District further represents and warrants that, in entering into this Exchange Agreement, District has not relied on any representation, warranty, promise or statement, express or implied, of City, or anyone acting for or on behalf of City, other than as expressly set forth in this Exchange Agreement, and that District had the opportunity to verify all matters concerning the City Property prior to the Closing (as defined in Section 8 of this Exchange Agreement), and that District shall acquire the City Property on District’s own prior investigation and examination of the City Property (or District’s election not to do so); AND THAT DISTRICT IS PURCHASING THE CITY PROPERTY IN AN “AS IS” AND “WITH ALL FAULTS” PHYSICAL CONDITION AND IN AN “AS IS” AND “WITH ALL
2.4 Notwithstanding anything to the contrary contained in this Exchange Agreement, District acknowledges that any written disclosures made by City prior to the Closing (as defined in Section 8 of this Exchange Agreement) shall constitute notice to District of the matter disclosed, and City shall have no liability with respect thereto if District thereafter consummates the transaction contemplated hereby.
2.5 No brokerage commission, finder’s fee or other compensation is due or payable by reason of District’s actions with respect to the transaction contemplated hereby. District agrees to indemnify, defend and hold City harmless from and against any losses, damages, costs and expenses (including attorneys’ fees) incurred by City by reason of any breach or inaccuracy of the representation and warranty contained in this Section 2.5.
2.6 The documents relating to the Property that have been made available by District for review pursuant to Section 5.4 of the Master Agreement are (a) to the knowledge of District, all the material documents relating to the Property which District has in its possession, and (b) are either original documents or true copies of such documents in District’s possession.
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Sources: Lease Agreement