Template:IETA Master Agreement 4

4 General Obligations, Representations and Warranties
4.1 Representations and Warranties. Each Party represents and warrants to the other Party (which representations and warranties shall be deemed to be repeated by each Party on each date on which a Transaction is entered into) that:

4.1(a) Status. It is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation (and, if relevant under those laws, in good standing).

4.1(b) Power. It has the power:

4.1(b)(i) to execute this Agreement and any other documentation relating to this Agreement to which it is a party;

4.1(b)(ii) to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver (and it has at all times fully complied with the EU ETS Rules to the extent necessary to permit the Transfer contemplated by this Agreement); and

4.1(b)(iii) to perform its obligations under this Agreement and any obligations it has under any Credit Support Document to which it is a party,

and has taken, or obtained, as the case may be, all approvals, consents, resolutions or other actions (which includes, if the Delivering Party, having taken all necessary steps to create or otherwise obtain the Allowances that are the subject of this Agreement) that are legally required in the relevant jurisdiction(s) to authorise such execution, delivery and performance.

4.1(c) No Violation or Conflict. The execution, delivery and performance referred to in Clause 4.1(b) (Representations and Warranties) do not violate or conflict with any law or statute applicable to it, including without limitation any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets, or any contractual restriction binding on or affecting it or any of its assets.

4.1(d) Required Authorisations. All Required Authorisations have been obtained and are in full force and effect, and all conditions of any Required Authorisations have been complied with.

4.1(e) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and to equitable principles of general application.

4.1(f) No Event of Default. No Event of Default, or event that with notice or lapse of time or both would constitute an Event of Default, has occurred with respect to it and no such event would occur as a result of its entering into or performing its obligations under this Agreement or any Credit Support Document to which it is a party.

4.1(g) No Litigation. No litigation, arbitration or administrative suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency, official or arbitrator is pending or, so far as it is aware, threatened against it or, if applicable, any Credit Support Provider that would, if adversely determined, be likely to affect the legality, validity or enforceability against it of this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations under this Agreement or that Credit Support Document.

4.1(h) No Reliance. It is not relying upon any representations of the other Party other than those expressly set out in this Agreement or any Credit Support Document to which it is a party.

4.1(i) Principal. Unless otherwise specified in Schedule 2 (‘‘Elections’’), it has negotiated, entered into and executed this Agreement and any Credit Support Document to which it is a party as principal (and not as agent or in any other capacity, fiduciary or otherwise).

4.1(j) Risk Assumption. It has entered into this Agreement and any Credit Support Document to which it is a party after a full opportunity to review their terms and conditions, has a full understanding of those terms and conditions and of their risks, and is capable of assuming those risks.

4.1(k) No Advice. The other Party is not acting as a fiduciary or an advisor for it, nor has the other Party given to it any advice, representation, assurance or guarantee as to the expected performance, benefit or result of this Agreement.

4.1(l) Accurate Information. All applicable information (other than, for the avoidance of doubt, information provided according to Clause 4.3 (Provision of Annual Reports) that is furnished in writing by or on behalf of it to the other Party and is identified as being subject to or connected to this Agreement is, as of the date it is furnished to the other Party, true, accurate and complete in every material respect.

4.2 Holding Accounts and Registries. Without prejudice to Clause 5.2 (Sufficient Allowances), each Party shall:

4.2(a) ensure that it has one or more Holding Accounts validly registered in a Registry in accordance with the EU ETS Rules; and

4.2(b) conduct its affairs, other than as addressed by Clause 13.1 (Force Majeure) or Clause 13.4 (Suspension Event), so as not to give the Relevant Authority cause to:

4.2(b)(i) refuse, reject or cancel any Transfer (whether in whole or in part) requested to be made pursuant to this Agreement; or

4.2(b)(ii) suspend or restrict either Party’s right to request or effect any Transfer (including, without limitation, suspension or cancellation of any relevant Holding Account);

4.2(c) where it has specified one or more Holding Accounts or Registries in the Confirmation to a Transaction (including any additional accounts or Registries agreed by the Parties in accordance with Clause 6.5 (Effecting Transfers)), ensure that on a Delivery Date, it has or will have at least one Holding Account registered in each Registry it has so specified, a Party may also wish to specify Holding Accounts in Schedule 2 (‘‘Elections’’) and such Holding Accounts shall apply to the Confirmations for each Transaction unless otherwise specified; and

4.2(d) where it has specified a Holding Account, it has, in respect of such Holding Account, nominated all of the other Party’s specified Holding Accounts in such Confirmation as ‘trusted accounts’ for the purposes of the Registries Regulation.

4.3 Provision of Annual Reports. If requested in writing by a Party, the other Party shall deliver for its last completed fiscal year, within one hundred and twenty (120) days following the end of that fiscal year, a copy of such Party’s (or for such period that such Party’s obligations are supported by a Credit Support Provider, its Credit Support Provider’s) annual report containing audited consolidated financial statements for such fiscal year (where those are not freely available on the internet on the website of such Party or its Credit Support Provider (as the case may be)), together with the annual report made to shareholders, debt holders or other stakeholders. In all cases, the financial statements referred to in this Clause 4.3 are to be prepared in accordance with generally accepted accounting principles in the relevant jurisdiction.