Page 136 - Yucaipa Valley Water District
P. 136
Director Memorandum No. 16-040 Page 16 of 24
6. Assignee’s Representations and Warranties. Assignee hereby represents and
warrants to Valley District that all of the followi ng statements are true, accurate and correct
as of the Effective Date and will be correct and complete as of the Closing Date as though
made then:
a. Assignee is a California limited liability company, duly organized and validly
existing under the laws of the State of California. Assignee has all necessary power and
authority to enter into this Agreement and all other documents that Assignee is required to
execute and deliver hereunder and holds all permits, licenses, orders and approvals of all
federal, state and local governmental or regulatory bodies necessary and required therefor;
b. Assignee has all requisite power and authority to perform its obligations
hereunder. The execution, delivery and performance by Assignee of this Agreement, and the
consummation of all the transactions contemplated hereby, have been duly and validly
authorized by Assignee. This Agreement, when executed and delivered by Assignee, will be
duly and validly executed and delivered and will be the valid and binding obligations of
Assignee, enforceable against Assignee, except as limited by applicable bankruptcy,
moratorium and other laws of general application affecting enforcement of creditors’ rights
generally;
c. To the best of Assignee’s knowledge, no consents, licenses, approvals or
authorizations of, or registrations or declarations with, any governmental authority, bureau,
agency or commission, or any third party, are required to be obtained (other than the SAWPA
Consent and the Lender Release) or made by Assignee in connection with the execution,
delivery, performance, validity and en forceability of this Agreement; and
d. The Lender Lien (defined below) is the only lien, encumbrance or security
interest on the Capacity of which Assignee is aware, and as of the Closing Date Assignee
shall have acquired the Lender Release. If any Claims on the Capacity arise between the
Effective Date and the Closing Date, then Assignee shall obtain a release or pay such Claims;
provided however, that the Holdback shall be the sole and exclusive source of recovery to
resolve such Claims, and it should be used pursuant to the terms and conditions set forth in
Section 4.
7. AS-IS Transaction. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
SECTION 6 OF THIS AGREEMENT, ASSIGNEE MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
MATTER RELATING TO THE CAPACITY OR THE DISCHARGE AGREEMENT.
WITHOUT IN ANY WAY LIMITING THE FOREGOING, ASSIGNEE HAS NOT GIVEN,
WILL NOT BE DEEMED TO HAVE GIVEN AND HEREBY DISCLAIMS ANY WARRANTY,
EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AS TO ANY PORTION OF THE CAPACITY. ACCORDINGLY, THE CAPACITY
SHALL BE TRANSFERRED TO VALLEY DISTRICT AT THE CLOSING “AS IS,” “WHERE
IS,” AND “WITH ALL FAULTS.”
8. Mutual and General Release. Except for rights and obligations arising or preserved
under this Agreement, upon the Closing Date, Valley District, on the one hand, and Assignee,
on the other hand hereby withdraw, release, remise, forgive, acquit, settle, compromise and
Yucaipa Valley Water District - April 20, 2016 - Page 134 of 158
6. Assignee’s Representations and Warranties. Assignee hereby represents and
warrants to Valley District that all of the followi ng statements are true, accurate and correct
as of the Effective Date and will be correct and complete as of the Closing Date as though
made then:
a. Assignee is a California limited liability company, duly organized and validly
existing under the laws of the State of California. Assignee has all necessary power and
authority to enter into this Agreement and all other documents that Assignee is required to
execute and deliver hereunder and holds all permits, licenses, orders and approvals of all
federal, state and local governmental or regulatory bodies necessary and required therefor;
b. Assignee has all requisite power and authority to perform its obligations
hereunder. The execution, delivery and performance by Assignee of this Agreement, and the
consummation of all the transactions contemplated hereby, have been duly and validly
authorized by Assignee. This Agreement, when executed and delivered by Assignee, will be
duly and validly executed and delivered and will be the valid and binding obligations of
Assignee, enforceable against Assignee, except as limited by applicable bankruptcy,
moratorium and other laws of general application affecting enforcement of creditors’ rights
generally;
c. To the best of Assignee’s knowledge, no consents, licenses, approvals or
authorizations of, or registrations or declarations with, any governmental authority, bureau,
agency or commission, or any third party, are required to be obtained (other than the SAWPA
Consent and the Lender Release) or made by Assignee in connection with the execution,
delivery, performance, validity and en forceability of this Agreement; and
d. The Lender Lien (defined below) is the only lien, encumbrance or security
interest on the Capacity of which Assignee is aware, and as of the Closing Date Assignee
shall have acquired the Lender Release. If any Claims on the Capacity arise between the
Effective Date and the Closing Date, then Assignee shall obtain a release or pay such Claims;
provided however, that the Holdback shall be the sole and exclusive source of recovery to
resolve such Claims, and it should be used pursuant to the terms and conditions set forth in
Section 4.
7. AS-IS Transaction. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
SECTION 6 OF THIS AGREEMENT, ASSIGNEE MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
MATTER RELATING TO THE CAPACITY OR THE DISCHARGE AGREEMENT.
WITHOUT IN ANY WAY LIMITING THE FOREGOING, ASSIGNEE HAS NOT GIVEN,
WILL NOT BE DEEMED TO HAVE GIVEN AND HEREBY DISCLAIMS ANY WARRANTY,
EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AS TO ANY PORTION OF THE CAPACITY. ACCORDINGLY, THE CAPACITY
SHALL BE TRANSFERRED TO VALLEY DISTRICT AT THE CLOSING “AS IS,” “WHERE
IS,” AND “WITH ALL FAULTS.”
8. Mutual and General Release. Except for rights and obligations arising or preserved
under this Agreement, upon the Closing Date, Valley District, on the one hand, and Assignee,
on the other hand hereby withdraw, release, remise, forgive, acquit, settle, compromise and
Yucaipa Valley Water District - April 20, 2016 - Page 134 of 158
