Representations Warranties and Covenants of the Parties. Indemnification ------------------------------------------------------------------------- (a) At all times when is distributing the Shares, LSD represents and warrants to, and covenants with that: i. LSD is a Delaware limited partnership and is duly registered with the U.S. Securities and Exchange Commission (the "SEC") as a broker-dealer. ii. The Fund is a series of a business trust duly created pursuant to the laws of The Commonwealth of Massachusetts and is being duly operated in accordance with applicable statutory and common law requirements. iii. The Trust is duly registered with the SEC as an open-ended management investment company under the U.S. Investment Company Act of 1940, as amended (the "1940 Act"), and the Shares are duly registered with the SEC under the U.S. Securities Act of 1933, as amended, for offer and sale. iv. The Fund has full power and authority to conduct its business as described in the Securities Registration Statements, Japanese Prospectus, U.S. Prospectus and its Post-Effective Amendment filings made with the SEC, including, but not limited to, full power and authority to issue and sell the Shares and to take any other action and to do all acts necessary to fulfill its obligations as set forth in the Trust Deed and Bylaws. v. The Fund has taken no action contrary to the laws, regulations and decrees set forth in sub-sections (ii), (iii) and (xii) of this Section 7 or the Trust Deed and Bylaws. vi. As of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of LSD of this Agreement, and for the sale and delivery of the Shares hereunder, have been given, and LSD has full right, power and authority to enter into this Agreement. vii. Upon delivery of the Shares and payment therefor pursuant hereto, legal and valid title to fully paid Shares, non-assessable by the Fund, free and clear of all liens and encumbrances, will pass to or their clients, as the case may be. The Shares conform in all material respects to statements made in the then-current Prospectus and the issue of Shares is not subject to pre-emptive rights. viii. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument to which LSD is a party or by which it, or any of the existing property of LSD is bound, or any statute or the Articles of Incorporation and Bylaws of LSD, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over LSD or over its properties. ix. LSD agrees to give prior notice to of any material change in the Trust Deed and Bylaws of the Fund, in the structure, operation or management of the Fund if and when such change would disqualify the Shares for distribution in Japan. x. There is no known material action, suit or proceeding pending against or affecting LSD which could result in a material adverse change in the condition, financial or otherwise, of LSD or which might materially adversely affect the assets of LSD. xi. The Japanese Prospectus does not contain an untrue statement of a material fact or an omission of a material fact necessary in order to make a statement therein not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from the Japanese Prospectus made in reliance upon and conformity with information furnished to LSD by for use in the Japanese Prospectus. xii. At the time the Securities Registration Statement becomes effective and at all times during the Public Offerings, the Securities Registration Statement and the Japanese Prospectus contained therein will comply in all material respects with the requirements of Japanese law and the standards of the Japan Securities Dealers Association to the extent the same have been brought to the attention of LSD by or its counsel. xiii. The Fund intends to elect to be, and to qualify each year for treatment as, a regulated investment company with the meaning of Section 851 of Internal Revenue Code of 1986, as amended. (b) represents and warrants to, and covenants with LSD that: i. is a corporation duly organized under the laws of Japan and is duly registered with the MOF of Japan as a broker-dealer. ii. has full power and authority to conduct its business as described in the Japanese Securities Registration Statement, including, but not limited to, full power and authority to distribute the Shares and to take any other action and to do all acts necessary to fulfill its obligations under this Agreement. iii. As of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of this Agreement, and for the distribution of the Shares hereunder, have been given, and has full right, power and authority to enter into this Agreement. iv. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument to which is a party or by which it, or any of the existing property of is bound, or any statute or the Articles of Incorporation and Bylaws of , or any order, rule or regulation of any court or governmental agency or body having jurisdiction over or over its properties. Each of LSD and agrees to notify the other party if any of their respective representations, warranties or covenants set forth in this Section 7 shall no longer be true. The representations contained in this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Representations Warranties and Covenants of the Parties. Indemnification -------------------------------------------------------------------------A. The Sellers represent, warrant and covenant to Buyer each of the items listed below:
(a) At all times when is distributing the Shares, LSD represents and warrants to1. This Agreement constitutes, and covenants with that:
i. LSD is a Delaware limited partnership each instrument to be executed and is duly registered with delivered by each of the U.S. Securities and Exchange Commission (the "SEC") as a broker-dealer.
ii. The Fund is a series of a business trust duly created pursuant Sellers in accordance herewith shall constitute, subject solely to the laws claims of The Commonwealth creditors disclosed herein, the valid and legally binding obligation of Massachusetts and is being duly operated each of the Sellers, enforceable against each of them in accordance with applicable statutory and common law requirements.
iiitheir respective terms. The Trust is duly registered with the SEC as an open-ended management investment company under the U.S. Investment Company Act of 1940, as amended (the "1940 Act"), and the Shares are duly registered with the SEC under the U.S. Securities Act of 1933, as amended, for offer and sale.
iv. The Fund has full power and authority to conduct its business as described in the Securities Registration Statements, Japanese Prospectus, U.S. Prospectus and its Post-Effective Amendment filings made with the SEC, including, but not limited to, full power and authority to issue and sell the Shares and to take any other action and to do all acts necessary to fulfill its obligations as set forth in the Trust Deed and Bylaws.
v. The Fund has taken no action contrary to the laws, regulations and decrees set forth in sub-sections (ii), (iii) and (xii) of this Section 7 or the Trust Deed and Bylaws.
vi. As None of the signing date Sellers are aware of this Agreementany circumstance which could affect the validity, all authorizations and consents necessary for the execution and delivery by legality or on behalf enforceability of LSD of this Agreement, and for the sale and delivery of the Shares hereunder, have been given, and LSD has full right, power and authority to enter into this Agreement.
vii2. Upon delivery The Company is a duly organized, unincorporated organization, has all requisite authority to own, lease and operate the Assets and to carry on the Business as presently conducted, and is duly qualified and authorized to do business in the County of _____ State.
3. No statements have been made by Seller in this Agreement or in the Shares and payment therefor pursuant Exhibits or Schedules attached hereto, legal and valid title to fully paid Shareswhich are untrue statements of any fact, non-assessable by or misstatements of any fact which would make the Fund, free and clear of all liens and encumbrances, will pass to statements contained herein or their clients, as the case may betherein misleading.
4. The Shares conform Sellers do not have any material liabilities or obligations, whether accrued, absolute, contingent or otherwise, relating to the Assets, the Business or the which were known except as reflected in or otherwise disclosed in this Agreement or the Exhibits or Schedules.
5. All income, unemployment and other taxes, franchise and similar returns and reports for the Sellers required by federal, state and local law, including but not limited to federal income tax Form 1120, federal employment tax Forms 904 and 941, and New Jersey Corporation reports have been duly and timely filed and all material respects to statements made in taxes, assessments and other governmental charges upon Sellers or upon the then-current Prospectus Premises, the Assets, the Business and the issue of Shares is not subject to pre-emptive rightsStore which Sellers in good faith believe are due and payable have been paid.
viii6. Neither the execution nor the delivery of Except as shall be set forth in this Agreement, nor or the consummation Exhibits and Schedules attached, to be best of the transactions herein contemplatedSellers' knowledge, nor compliance with the termsthere are no actions, conditions claims, proceedings or provisions hereof, will result in a breach or violation of any of the terms or provisions ofinvestigations pending, or constitute a default underthreatened, against or affecting the Sellers, specifically and directly, with respect to their interests in the Business or the Assets, in any agreement court or instrument to arbitration proceeding or before any governmental agency or authority, which LSD is a party if adversely decided, could have an adverse effect on the Business, or by which it, the Assets. To the best of Sellers knowledge neither the Company or any of the existing property of LSD is bound, or any statute or the Articles of Incorporation and Bylaws of LSD, or Sellers are subject to any order, rule judgment, injunction or regulation of any court or governmental agency or body having jurisdiction over LSD or over its properties.
ix. LSD agrees to give prior notice to of any material change in the Trust Deed and Bylaws of the Fund, in the structure, operation or management of the Fund if and when such change would disqualify the Shares for distribution in Japan.
x. There is no known material action, suit or proceeding pending against or affecting LSD decree which could result in a material adverse change in the condition, financial or otherwise, of LSD or which might materially adversely affect the assets Business, the Assets. To the best of LSDSellers' knowledge, the Sellers are not subject to any order, judgment, injunction, or decree which could prevent them from fully performing their obligations hereunder. The Sellers have not received any actual notice of any, action, claim, proceeding investigation. judgment, injunction. or decree which is not disclosed in the Schedules or Exhibits attached hereto.
xi7. The Japanese Prospectus does Sellers do not contain an untrue statement of a material fact or an omission of a material fact necessary have any employee benefit plans, as that term is defined in order to make a statement therein not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from the Japanese Prospectus made in reliance upon and conformity with information furnished to LSD by for use in the Japanese Prospectus.
xii. At the time the Securities Registration Statement becomes effective and at all times during the Public Offerings, the Securities Registration Statement and the Japanese Prospectus contained therein will comply in all material respects with the requirements of Japanese law and the standards Section 3(3) of the Japan Securities Dealers Association to the extent the same have been brought to the attention Employee Retirement Income Security Act of LSD by or its counsel.
xiii. The Fund intends to elect to be, and to qualify each year for treatment as, a regulated investment company with the meaning of Section 851 of Internal Revenue Code of 19861974, as amended. Purchasers shall not have any responsibility or liability for the funding of any such plan or the payment of any benefits under any such plan.
(b) represents and warrants to, and covenants with LSD that:
i. is a corporation duly organized under 8. To the laws best of Japan and is duly registered with Sellers' knowledge no action or proceeding in bankruptcy or insolvency has commenced or been threatened against the MOF of Japan as a broker-dealer.
iiCompany or Sellers. has full power and authority to conduct its business as described in the Japanese Securities Registration Statement, including, but not limited to, full power and authority to distribute the Shares and to take any other action and to do all acts necessary to fulfill its obligations under this Agreement.
iii. As of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of this Agreement, and for the distribution of the Shares hereunder, Sellers' have been given, and has full right, power and authority to enter into this Agreement.
iv. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation no actual notice of any of the terms action or provisions of, proceeding in bankruptcy or constitute a default under, any agreement or instrument to which is a party or by which it, or any of the existing property of is bound, or any statute or the Articles of Incorporation and Bylaws of , or any order, rule or regulation of any court or governmental agency or body having jurisdiction over or over its properties. Each of LSD and agrees to notify the other party if any of their respective representations, warranties or covenants set forth in this Section 7 shall no longer be true. The representations contained in this Section 7 shall survive the termination of this Agreementinsolvency.
Appears in 1 contract
Sources: Asset Purchase Agreement (Planet Entertainment Corp)
Representations Warranties and Covenants of the Parties. Indemnification -------------------------------------------------------------------------
(a) At all times when is distributing To induce the SharesForbearing Noteholders to execute and deliver this Agreement, LSD represents and each of the Issuers represents, warrants to, and covenants with that:
i. LSD is a Delaware limited partnership (1) The execution, delivery and is performance by each of the Issuers of this Agreement and all documents and instruments delivered in connection herewith have been duly registered with authorized by the U.S. Securities Issuers, this Agreement has been duly executed and Exchange Commission (delivered by each of the "SEC") as a broker-dealer.
ii. The Fund is a series Issuers, and this Agreement and all documents and instruments delivered in connection herewith are legal, valid, and binding obligations of a business trust duly created pursuant to the laws of The Commonwealth of Massachusetts and is being duly operated Issuers enforceable against such parties in accordance with their respective terms, except as the enforcement thereof may be subject to (i) the effect of any applicable statutory bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’ rights generally and common law requirements.
iii. The Trust is duly registered with the SEC as an open-ended management investment company under the U.S. Investment Company Act of 1940, as amended (the "1940 Act"), and the Shares are duly registered with the SEC under the U.S. Securities Act of 1933, as amended, for offer and sale.
iv. The Fund has full power and authority to conduct its business as described in the Securities Registration Statements, Japanese Prospectus, U.S. Prospectus and its Post-Effective Amendment filings made with the SEC, including, but not limited to, full power and authority to issue and sell the Shares and to take any other action and to do all acts necessary to fulfill its obligations as set forth in the Trust Deed and Bylaws.
v. The Fund has taken no action contrary to the laws, regulations and decrees set forth in sub-sections (ii) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law);
(2) Neither the execution, (iii) delivery and (xii) performance of this Section 7 or the Trust Deed Agreement and Bylaws.
vi. As of the signing date of this Agreement, all authorizations documents and consents necessary for the execution and delivery by or on behalf of LSD of this Agreement, and for the sale and delivery of the Shares hereunder, have been given, and LSD has full right, power and authority to enter into this Agreement.
vii. Upon delivery of the Shares and payment therefor pursuant hereto, legal and valid title to fully paid Shares, non-assessable by the Fund, free and clear of all liens and encumbrances, will pass to or their clients, as the case may be. The Shares conform instruments delivered in all material respects to statements made in the then-current Prospectus and the issue of Shares is not subject to pre-emptive rights.
viii. Neither the execution nor the delivery of this Agreement, connection herewith nor the consummation of the transactions herein contemplatedcontemplated hereby or thereby does or shall contravene, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation of any of the terms or provisions of, or constitute a default under, violate (i) any agreement provision of either Issuer’s respective organizational documents or instrument to which LSD is a party or by which it, or (ii) any applicable law; and
(3) As of the existing property date hereof, no Default or Event of LSD Default has occurred or is bound, or any statute continuing under this Agreement or the Articles of Incorporation and Bylaws of LSD, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over LSD or over its properties.
ix. LSD agrees to give prior notice to of any material change in the Trust Deed and Bylaws of the Fund, in the structure, operation or management of the Fund if and when such change would disqualify the Shares for distribution in Japan.
x. There is no known material action, suit or proceeding pending against or affecting LSD which could result in a material adverse change in the condition, financial or otherwise, of LSD or which might materially adversely affect the assets of LSD.
xi. The Japanese Prospectus does not contain an untrue statement of a material fact or an omission of a material fact necessary in order to make a statement therein not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from the Japanese Prospectus made in reliance upon and conformity with information furnished to LSD by for use in the Japanese Prospectus.
xii. At the time the Securities Registration Statement becomes effective and at all times during the Public Offerings, the Securities Registration Statement and the Japanese Prospectus contained therein will comply in all material respects with the requirements of Japanese law and the standards of the Japan Securities Dealers Association to the extent the same have been brought to the attention of LSD by or its counsel.
xiii. The Fund intends to elect to be, and to qualify each year for treatment as, a regulated investment company with the meaning of Section 851 of Internal Revenue Code of 1986, as amendedNotes Documents.
(b) represents To induce the Issuers to execute and deliver this Agreement, each of the Forbearing Noteholders represents, warrants to, and covenants with LSD that:
i. is a corporation duly organized under the laws of Japan (1) The execution, delivery and is duly registered with the MOF of Japan as a broker-dealer.
ii. has full power and authority to conduct its business as described in the Japanese Securities Registration Statement, including, but not limited to, full power and authority to distribute the Shares and to take any other action and to do all acts necessary to fulfill its obligations under this Agreement.
iii. As performance by each of the signing date Forbearing Noteholders of this AgreementAgreement and all documents and instruments delivered in connection herewith have been duly authorized by the Forbearing Noteholders, this Agreement has been duly executed and delivered by each of the Forbearing Noteholders, and this Agreement and all authorizations documents and consents necessary for instruments delivered in connection herewith are legal, valid, and binding obligations of the execution Forbearing Noteholders enforceable against such parties in accordance with their respective terms, except as the enforcement thereof may be subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law);
(2) Neither the execution, delivery by or on behalf and performance of this Agreement, Agreement and for the distribution of the Shares hereunder, have been given, all documents and has full right, power and authority to enter into this Agreement.
iv. Neither the execution nor the delivery of this Agreement, instruments delivered in connection herewith nor the consummation of the transactions herein contemplatedcontemplated hereby or thereby does or shall contravene, nor compliance with the terms, conditions or provisions hereof, will result in a breach of, or violation violate (i) any provision of any of the terms Forbearing Noteholders respective organizational documents or provisions of(ii) any applicable law; and
(3) Each Forbearing Noteholder is the beneficial or record owner of the face amount of the Notes or is the nominee, investment manager, or constitute a default under, any agreement or instrument to which is a party or by which it, or any advisor for beneficial holders of the existing property face amount of is bound, or any statute or the Articles of Incorporation and Bylaws of , or any order, rule or regulation of any court or governmental agency or body having jurisdiction over or over its properties. Each of LSD and agrees Notes reflected in such Forbearing Noteholder’s signature page to notify the other party if any of their respective representations, warranties or covenants set forth in this Section 7 shall no longer be true. The representations contained in this Section 7 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Forbearance Agreement (Ferrellgas Partners Finance Corp)
Representations Warranties and Covenants of the Parties. Indemnification -------------------------------------------------------------------------Section 5.1 To induce UHS to acquire the Trust Property, the Trust represents and warrants to and agrees with UHS as to itself or the Trust Property, as follows:
Section 5.1.1 The Trust is a real estate investment trust duly organized, validly existing and in good standing under the laws of the State of Maryland with full power, authority and legal right to execute and deliver, and to perform and observe the provisions of the Agreement and all other instruments provided for herein to which it is a party and to carry out the transactions contemplated hereby. Section 5.1.2 This Agreement has been, and on the Closing Date all other Documents (as hereinafter defined) to be delivered pursuant to this Agreement on or before the Closing Date will have been, duly authorized, executed and delivered by the Trust, as required, and constitute the valid and binding agreements of the Trust, enforceable in accordance with their terms except (i) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. For the purposes hereof, “Documents” shall include this Agreement, the deed to the Trust Property, the assignment of the leases, Permits and warranties relating to the Trust Property and any notes, mortgages or deeds of trust or other agreements entered into by the Trust pursuant to the terms hereof.
Section 5.1.3 The Trust is a solvent entity and (a) At has filed all times when tax returns which are required to be filed by it and (b) is distributing the Shares, LSD represents and warrants to, and covenants with that:
i. LSD is a Delaware limited partnership and is duly registered with the U.S. Securities and Exchange Commission (the "SEC") as a broker-dealer.
ii. The Fund is a series of a business trust duly created pursuant to the laws of The Commonwealth of Massachusetts and is being duly operated not in accordance with applicable statutory and common law requirements.
iii. The Trust is duly registered with the SEC as an open-ended management investment company under the U.S. Investment Company Act of 1940, as amended (the "1940 Act"), and the Shares are duly registered with the SEC under the U.S. Securities Act of 1933, as amended, for offer and sale.
iv. The Fund has full power and authority to conduct its business as described default in the Securities Registration Statements, Japanese Prospectus, U.S. Prospectus and its Post-Effective Amendment filings made with the SEC, including, but not limited to, full power and authority to issue and sell the Shares and to take any other action and to do all acts necessary to fulfill its obligations as set forth in the Trust Deed and Bylaws.
v. The Fund has taken no action contrary to the laws, regulations and decrees set forth in sub-sections (ii), (iii) and (xii) of this Section 7 or the Trust Deed and Bylaws.
vi. As of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of LSD of this Agreement, and for the sale and delivery of the Shares hereunder, have been given, and LSD has full right, power and authority to enter into this Agreement.
vii. Upon delivery of the Shares and payment therefor pursuant hereto, legal and valid title to fully paid Shares, non-assessable by the Fund, free and clear of all liens and encumbrances, will pass to or their clients, as the case may be. The Shares conform in all material respects to statements made in the then-current Prospectus and the issue of Shares is not subject to pre-emptive rights.
viii. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation of any of the terms taxes levied or provisions of, or constitute a default under, any agreement or instrument to which LSD is a party or by which it, assessed against it or any of the existing property of LSD is boundits assets, or any statute or the Articles of Incorporation and Bylaws of LSDunder judgment, or any order, decree, rule or regulation of any court or governmental court, arbitrator, administrative agency or body having jurisdiction over LSD other governmental authority to which it may be subject which would, in each case or over its properties.
ix. LSD agrees to give prior notice to of any material change in the Trust Deed aggregate, materially and Bylaws of the Fund, in the structure, operation or management of the Fund if and when such change would disqualify the Shares for distribution in Japan.
x. There is no known material action, suit or proceeding pending against or affecting LSD which could result in a material adverse change in the condition, financial or otherwise, of LSD or which might materially adversely affect the assets of LSDtransactions contemplated hereby.
xi. The Japanese Prospectus does not contain an untrue statement of a Section 5.1.4 No material fact consent, approval or an omission of a material fact necessary in order to make a statement therein not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from the Japanese Prospectus made in reliance upon and conformity with information furnished to LSD by for use in the Japanese Prospectus.
xii. At the time the Securities Registration Statement becomes effective and at all times during the Public Offerings, the Securities Registration Statement and the Japanese Prospectus contained therein will comply in all material respects with the requirements of Japanese law and the standards of the Japan Securities Dealers Association to the extent the same have been brought to the attention of LSD by or its counsel.
xiii. The Fund intends to elect to be, and to qualify each year for treatment as, a regulated investment company with the meaning of Section 851 of Internal Revenue Code of 1986, as amended.
(b) represents and warrants to, and covenants with LSD that:
i. is a corporation duly organized under the laws of Japan and is duly registered with the MOF of Japan as a broker-dealer.
ii. has full power and authority to conduct its business as described in the Japanese Securities Registration Statement, including, but not limited to, full power and authority to distribute the Shares and to take any other action and to do all acts necessary to fulfill its obligations under this Agreement.
iii. As of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of this Agreement, and for the distribution of the Shares hereunder, have been given, and has full right, power and authority to enter into this Agreement.
iv. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereof, will result in a breach or violation of any of the terms or provisions authorization of, or constitute a default underregistration, any agreement declaration or instrument to which is a party or by which itfiling with, or any of the existing property of is bound, or any statute or the Articles of Incorporation and Bylaws of , or any order, rule or regulation of any court or governmental agency or body having jurisdiction over commission is required for the due execution, delivery or over its properties. Each performance of LSD and agrees to notify this Agreement or any of the other party Documents by the Trust, or for the validity or enforceability thereof against the Trust (except those, if any, already obtained), or for the payment of any amounts by the Trust thereunder other than the recording or filing for recordation of their respective representationsthe deed of the Trust Property, warranties or covenants set forth to carry out the transactions contemplated in this Agreement or the other Documents. Section 7 shall 5.1.5 There are no longer be true. The representations contained actions, proceedings or investigations pending or, to the best knowledge of the executive officers of the Trust, threatened against the Trust, before or by any court, arbitrator, administrative agency or other governmental authority which are expected, in this Section 7 shall survive its reasonable judgment, to materially and adversely affect its financial condition or operations, or its ability to carry out the termination of transactions contemplated in this Agreement.
Appears in 1 contract
Sources: Asset Exchange and Substitution Agreement (Universal Health Realty Income Trust)
Representations Warranties and Covenants of the Parties. Indemnification -------------------------------------------------------------------------Section 5.1 To induce UHS to acquire the Trust Property, the Trust represents and warrants to and agrees with UHS as to itself or the Trust Property, as follows:
Section 5.1.1 The Trust is a real estate investment trust duly organized, validly existing and in good standing under the laws of the State of Maryland with full power, authority and legal right to execute and deliver, and to perform and observe the provisions of the Agreement and all other instruments provided for herein to which it is a party and to carry out the transactions contemplated hereby.
Section 5.1.2 This Agreement has been, and on the Closing Date all other Documents (as hereinafter defined) to be delivered pursuant to this Agreement on or before the Closing Date will have been, duly authorized, executed and delivered by the Trust, as required, and constitute the valid and binding agreements of the Trust, enforceable in accordance with their terms except (i) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. For the purposes hereof, “Documents” shall include this Agreement, the deed to the Trust Property, the assignment of the leases, Permits and warranties relating to the Trust Property and any notes, mortgages or deeds of trust or other agreements entered into by the Trust pursuant to the terms hereof.
Section 5.1.3 The Trust is a solvent entity and (a) At has filed all times when tax returns which are required to be filed by it and (b) is distributing not in default in the Sharespayment of any taxes levied or assessed against it or any of its assets, LSD represents or under judgment, order, decree, rule or regulation of any court, arbitrator, administrative agency or other governmental authority to which it may be subject which would, in each case or in the aggregate, materially and warrants to, and covenants with that:
i. LSD is a Delaware limited partnership and is duly registered with adversely affect the U.S. Securities and Exchange Commission (the "SEC") as a broker-dealertransactions contemplated hereby.
ii. The Fund Section 5.1.4 No material consent, approval or other authorization of, or registration, declaration or filing with, any court or governmental agency or commission is a series required for the due execution, delivery or performance of a business trust duly created pursuant this Agreement or any of the other Documents by the Trust, or for the validity or enforceability thereof against the Trust (except those, if any, already obtained), or for the payment of any amounts by the Trust thereunder other than the recording or filing for recordation of the deed of the Trust Property, or to carry out the transactions contemplated in this Agreement or the other Documents.
Section 5.1.5 There are no actions, proceedings or investigations pending or, to the laws of The Commonwealth of Massachusetts and is being duly operated in accordance with applicable statutory and common law requirements.
iii. The Trust is duly registered with the SEC as an open-ended management investment company under the U.S. Investment Company Act of 1940, as amended (the "1940 Act"), and the Shares are duly registered with the SEC under the U.S. Securities Act of 1933, as amended, for offer and sale.
iv. The Fund has full power and authority to conduct its business as described in the Securities Registration Statements, Japanese Prospectus, U.S. Prospectus and its Post-Effective Amendment filings made with the SEC, including, but not limited to, full power and authority to issue and sell the Shares and to take any other action and to do all acts necessary to fulfill its obligations as set forth in the Trust Deed and Bylaws.
v. The Fund has taken no action contrary to the laws, regulations and decrees set forth in sub-sections (ii), (iii) and (xii) of this Section 7 or the Trust Deed and Bylaws.
vi. As best knowledge of the signing date of this Agreement, all authorizations and consents necessary for the execution and delivery by or on behalf of LSD of this Agreement, and for the sale and delivery executive officers of the Shares hereunderTrust, have been giventhreatened against the Trust, before or by any court, arbitrator, administrative agency or other governmental authority which are expected, in its reasonable judgment, to materially and LSD has full rightadversely affect its financial condition or operations, power and authority or its ability to enter into carry out the transactions contemplated in this Agreement.
vii. Upon delivery of the Shares Section 5.1.6 The execution and payment therefor pursuant hereto, legal and valid title to fully paid Shares, non-assessable by the Fund, free and clear of all liens and encumbrances, will pass to or their clients, as the case may be. The Shares conform in all material respects to statements made in the then-current Prospectus and the issue of Shares is not subject to pre-emptive rights.
viii. Neither the execution nor the delivery of this AgreementAgreement and the Documents, nor compliance with the provisions thereof and the consummation of the transactions herein contemplated, nor compliance with therein contemplated by the terms, conditions or provisions hereofTrust, will not result in a (1) any material breach or violation of (i) any material law or governmental rule or regulation applicable to the Trust now in effect, (ii) any provision of the terms Declaration of Trust or provisions ofBy-Laws of the Trust, (iii) any judgment, order or constitute a default underdecree of any court, arbitrator, administrative agency or other governmental authority binding upon the Trust, (iv) any material agreement or instrument to which LSD the Trust is a party or by which it, it or any of the existing property of LSD Trust Property is bound, or (2) the creation of any statute material lien, claim or encumbrance (other than the Articles Permitted Encumbrances) upon the Trust Property.
Section 5.1.7 Subject to the responsibility of Incorporation CMC pursuant to the terms of the Lease, the Trust unconditionally and Bylaws irrevocably indemnifies and agrees to defend and hold harmless CMC from and against any and all material damage, liability, loss, cost or expense, including, without limitation, costs and reasonable legal fees arising from (A) the placing of LSDany lien, mortgage or other encumbrance on the Trust Property in connection with any claim asserted against the Trust; or (B) the failure of any of the Documents to be valid, binding and enforceable in accordance with the terms thereof against the Trust.
Section 5.1.8 The Trust hereby accepts the UHS Property in full and complete satisfaction of the obligations of UHS under Article XXII of the Master Lease.
Section 5.2 To induce the Trust to sell the Trust Property and to terminate the Lease, UHS represents and warrants to and agrees with the Trust as follows:
Section 5.2.1 UHS is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware with full power, authority and legal right to execute and deliver, and to perform and observe the provisions of this Agreement and all other instruments provided for herein to which it is a party and to carry out the transactions contemplated hereby.
Section 5.2.2 This Agreement has been, and on the Closing Date all other Documents to be delivered pursuant to this Agreement on or before the Closing Date will have been, duly authorized, executed and delivered by UHS, as required, and constitute the valid and binding agreements of UHS, enforceable in accordance with their terms except (i) that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. For the purposes hereof, “Documents” shall include this Agreement, the assignment of the Permits and warranties relating to the UHS Property and any notes, mortgages or deeds of trust or other agreements entered into by UHS pursuant to the terms hereof.
Section 5.2.3 UHS is a solvent entity and (a) has filed all tax returns which are required to be filed by it and (b) is not in default in the payment of any taxes levied or assessed against it or any of its assets, or any under judgment, order, decree, rule or regulation of any court, arbitrator, administrative agency or other governmental authority to which it may be subject which would, in each case or in the aggregate, materially and adversely affect the transactions contemplated hereby.
Section 5.2.4 No material consent, approval or other authorization of, or registration, declaration or filing with, any court or governmental agency or body having jurisdiction over LSD commission is required for the due execution, delivery or over its propertiesperformance of this Agreement or any of the other Documents by UHS, or for the validity or enforceability thereof against UHS (except those, if any, already obtained), or for the payment of any amounts by UHS thereunder other than the recording or filing for recordation of the deed or other transfer documents relating to the UHS Property, or to carry out the transactions contemplated in this Agreement or the other Documents.
ix. LSD agrees Section 5.2.5 There are no actions, proceedings or investigations pending or, to give prior notice to of any material change in the Trust Deed and Bylaws best knowledge of the Fundexecutive officers of UHS, threatened against UHS, before or by any court, arbitrator, administrative agency or other governmental authority which are expected, in the structureits reasonable judgment, operation or management of the Fund if to materially and when such change would disqualify the Shares for distribution in Japan.
x. There is no known material action, suit or proceeding pending against or affecting LSD which could result in a material adverse change in the condition, financial or otherwise, of LSD or which might materially adversely affect the assets of LSD.
xi. The Japanese Prospectus does not contain an untrue statement of a material fact its financial condition or an omission of a material fact necessary in order to make a statement therein not misleading; providedoperations, however, that this representation and warranty shall not apply to statements in or omissions from the Japanese Prospectus made in reliance upon and conformity with information furnished to LSD by for use in the Japanese Prospectus.
xii. At the time the Securities Registration Statement becomes effective and at all times during the Public Offerings, the Securities Registration Statement and the Japanese Prospectus contained therein will comply in all material respects with the requirements of Japanese law and the standards of the Japan Securities Dealers Association to the extent the same have been brought to the attention of LSD by or its counsel.
xiii. The Fund intends ability to elect to be, and to qualify each year for treatment as, a regulated investment company with carry out the meaning of Section 851 of Internal Revenue Code of 1986, as amended.
(b) represents and warrants to, and covenants with LSD that:
i. is a corporation duly organized under the laws of Japan and is duly registered with the MOF of Japan as a broker-dealer.
ii. has full power and authority to conduct its business as described transactions contemplated in the Japanese Securities Registration Statement, including, but not limited to, full power and authority to distribute the Shares and to take any other action and to do all acts necessary to fulfill its obligations under this Agreement.
iii. As of the signing date of this Agreement, all authorizations and consents necessary for the Section 5.2.6 The execution and delivery by or on behalf of this AgreementAgreement and the Documents, compliance with the provisions thereof and for the distribution of the Shares hereunder, have been given, and has full right, power and authority to enter into this Agreement.
iv. Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the terms, conditions or provisions hereoftherein contemplated by UHS, will not result in a (1) any material breach or violation of (i) any material law or governmental rule or regulation applicable to UHS now in effect, (ii) any provision of the terms Certificate of Incorporation or provisions ofBy-Laws of UHS, (iii) any judgment, order or constitute a default underdecree of any court, arbitrator, administrative agency or other governmental authority binding upon UHS, (iv) any material agreement or instrument to which UHS is a party or by which it, it or any of the existing property of UHS Property is bound, or (2) the creation of any statute material lien, claim or encumbrance (other than the Articles Permitted Encumbrances) upon the UHS Property, or (3) a revocation, withdrawal, termination, or limitation on any license, consent, certificate of Incorporation need, approval, eligibility or program described in Section 5.2.9.
Section 5.2.7 To the knowledge of UHS:
(i) UHS has not received any notice of any actual or claimed violation of any applicable municipal, county, state or Federal laws, regulations, ordinances, standards or orders or any municipal, health, building and Bylaws zoning laws and regulations (including, without limitation, the fire safety code) where the failure to comply therewith could have a material adverse effect on the business, property, condition (financial or otherwise) or operation of the UHS Property as it is presently being operated;
(ii) to the best knowledge of UHS, there are no outstanding deficiencies or work orders of which it has received notice from any authority having jurisdiction over the UHS Property requiring conformity to any applicable statute, regulation, ordinance or bylaw pertaining to the type of facility presently being operated on the UHS Property, including but not limited to the Medicare and Medicaid Programs; and
(iii) UHS is not aware of any notice of any claim, requirement or demand of any licensing or certifying agency supervising or having authority over the UHS Property or otherwise to rework or redesign it so as to conform to or comply with any existing law, code or standard which has not been fully satisfied prior to the date hereof.
Section 5.2.8 UHS unconditionally and irrevocably indemnifies and agrees to defend and hold harmless the Trust from and against any and all material damage, liability, loss, cost or expense, including, without limitation, costs and reasonable legal fees arising from (A) the placing of any lien, mortgage or other encumbrance on the UHS Property in connection with any claim asserted against the Trust; or (B) the failure of any of the Documents to be valid, binding and enforceable in accordance with the terms thereof against UHS.
Section 5.2.9 The UHS Property is duly and properly licensed under all applicable Federal, state and local laws, ordinances and regulations and in conformance with all insurance requirements, and holds all other consents, certificates of need and approvals issued, and has satisfied all eligibility and other similar requirements imposed, by hospital, health or similar regulatory bodies, administrative agencies or other governmental bodies, agencies or officials, or that relate to private or governmental programs for the reimbursement or payment of health care costs. There is no action pending or, to the best of UHS’ knowledge, recommended or threatened by the appropriate state or Federal agency having jurisdiction thereof, either to revoke, withdraw or suspend any license to operate the UHS Property nor is there any decision or threat not to renew any provider agreement related to the UHS Property, or any order, rule or regulation action of any court other type which would have a material adverse effect on the UHS Property, its operations or governmental agency or body having jurisdiction over or over its properties. Each business.
Section 5.2.10 The capital additions at Southwest Healthcare System-Inland Valley Campus are being constructed in accordance with the plans and design of LSD and agrees to notify the other party if any of their respective representations, warranties or covenants set forth in this Section 7 shall no longer be true. The representations contained in this Section 7 shall survive the termination of this AgreementArchitects.
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