Additional Covenants of the Issuer. The Issuer agrees that: (a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement. (b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate. (c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 2 contracts
Sources: Distribution Agreement (Pep Boys Manny Moe & Jack), Distribution Agreement (Pep Boys Manny Moe & Jack)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities (whether through an Agent as agent or to one or more Agents as principal) and each delivery of Securities (whether through an Agent as agent or to one or more Agents as principal) shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President President, and a principal financial by the Treasurer, the Controller, the Secretary or accounting officer any Assistant Treasurer, Assistant Controller or Assistant Secretary of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents, the Issuer shall cause PWC concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PWC may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), (b) and (c), it being understood that under no circumstance shall any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any such person.
(f) The Issuer agrees to make generally available to its security holders "Applicable Periodearning statements" shall mean with respect to any opinion delivered on a Representation Date satisfying the period commencing on provisions of Section 11(a) of the date as Securities Act of 1933 and Rule 158 thereunder, which requirement is deemed satisfied under such Rule through the most recent prior opinion delivered at Issuer's timely filing of periodic reports under Section 13 or 15(d) of the Closing Date or under this Section 6(c) speaks and ending on such Representation DateExchange Act of 1934.
Appears in 2 contracts
Sources: Agency Agreement (International Business Machines Corp), Agency Agreement (Ibm Credit Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at reasonably requested by the next Marketing Time if such amendment or supplement shall not occur at a Marketing TimeAgents, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of inside counsel for the IssuerIssuer or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date, upon the relevant reasonable request of the Agents, the Issuer shall cause Price Waterhouse concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Price Waterhouse may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 2 contracts
Sources: Agency Agreement (International Business Machines Corp), Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus Final Prospectus, each as amended or supplemented at to each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Final Prospectus shall be amended or supplemented through the filing with the Commission by the Issuer of an annual report on Form 20-F, report on Form 6-K containing quarterly financial information incorporated by reference in the Registration Statement (or any amendment thereto) or (if requested by the Distributor at the time of such filing) any other report on Form 6-K or any other post-effective amendment to such Registration Statement or amendment or supplement to such Final Prospectus (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuertwo Authorized Persons, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f6(g) hereof which was last furnished to the Distributor pursuant to this Section 6(b7(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f6(g); provided, however, that any certificate furnished under this Section 6(b7(b) shall relate to the Registration Statement and the Final Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f6(g), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b7(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(eSections 6(d) and (f) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c7(c); provided further, however, that any opinion or opinions furnished under this Section 6(c7(c) shall relate to the Registration Statement and the Final Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iiii) of Section 5(e6(f) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' ’ rights and general equity principles, and conform in all material respects to the description thereof contained in the Final Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c7(c), "“Applicable Period" ” shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c7(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:: -----------------------------------------------------------
(a) a. Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) b. Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement) (the date of any such amendment or supplement being referred to herein as a "Representation Date"), the Issuer shallshall (in the case of a Current Report on Form 8-K, upon the reasonable request of the Distributors), (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at during a Marketing Time, or (B) immediately at upon the commencement of the next Marketing Time if such amendment or supplement shall not occur at during a Marketing Time, furnish the Distributor Distributors with a certificatecertificate on behalf of the Issuer, dated the date of delivery thereof, of the President Chairman and Chief Executive Officer or any Vice President and a the principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(g) hereof which was last furnished to the Distributor Distributors pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(g); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (iii) of Section 5(f5(g), to the time of delivery of such certificate.
(c) c. At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at during a Marketing Time, or (B) immediately at upon the commencement of the next Marketing Time if such Representation Date shall not occur at during a Marketing Time, furnish the Distributor Distributors with a written opinion or opinionsopinion, dated the date of such Representation Date, of counsel for Stev▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Issuer (or at the option of the Issuer, the opinion of Sidley & Austin), in form satisfactory to the DistributorDistributors, to covering the effect matters set forth in Section Sections 5(e) and 5(f) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iiiii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented through the filing with the Commission by the Issuer of an annual report on Form 10-K (or any amendment thereto), a quarterly report on Form 10-Q (or any amendment thereto) or (if requested by the Distributor at the time of such filing) a current report on Form 8-K or any other post-effective amendment to such Registration Statement or amendment or supplement to such Prospectus (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' ’ rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "“Applicable Period" ” shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); providedPROVIDED, howeverHOWEVER, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; howeverPROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.prior
Appears in 1 contract
Sources: Distribution Agreement (Credit Suisse First Boston Usa Inc)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities (whether through an Agent as agent or to one or more Agents as principal) and each delivery of Securities (whether through an Agent as agent or to one or more Agents as principal) shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President President, and a principal financial by the Treasurer, the Controller, the Secretary or accounting officer any Assistant Treasurer, Assistant Controller or Assistant Secretary of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents, the Issuer shall cause PWC, and Ernst & Young, LLP, as applicable, concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PWC, and Ernst & Young, LLP, as applicable, may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), (b) and (c), it being understood that under no circumstance shall any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any such person.
(f) The Issuer agrees to make generally available to its security holders "Applicable Periodearning statements" shall mean with respect to any opinion delivered on a Representation Date satisfying the period commencing on provisions of Section 11(a) of the date as Securities Act of 1933 and Rule 158 thereunder, which requirement is deemed satisfied under such Rule through the most recent prior opinion delivered at Issuer's timely filing of periodic reports under Section 13 or 15(d) of the Closing Date or under this Section 6(c) speaks and ending on such Representation DateExchange Act of 1934.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration StatementStatements.
(b) Each time that the Registration Statement Statements or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such amendment or supplement shall not occur at during a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, shall (A) concurrently if such Representation Date shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such Representation Date shall not occur at during a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at the time of delivery of such Representation Date opinion or opinions and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfermoratorium, reorganization, moratorium and arrangement or other similar laws now or hereafter in effect affecting the rights of general applicability relating to or affecting creditors' rights creditors generally and general principles of equity principlesand rules of law governing and limiting the availability of specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law), and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant settlement date or dates for the delivery sale of such Securities to the purchaser or purchasers thereofSecurities. For the purpose of this Section 6(c), "“Applicable Period" ” shall mean with respect to any opinion delivered on a Representation Date pursuant to this Section 6(c) the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c) speaks and ending on such Representation Datethe date of delivery of the opinion to be delivered pursuant to this Section 6(c).
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each During each Marketing Period, each time that the Registration Statement or the Prospectus shall be amended or supplemented (including the filing with the Commission of any document incorporated by reference into the Registration Statement, other than by a documents not containing financial statements, and excluding Pricing SupplementSupplements), the Issuer shall, unless otherwise waived by the Agents, (A) concurrently with such amendment or supplement, supplement or (B) if such amendment or supplement shall occur at was not filed during a Marketing TimePeriod, on or (B) immediately at before the first day of the next succeeding Marketing Time if such amendment or supplement shall not occur at a Marketing TimePeriod, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of either the Chairman of the Board of Directors, the President or any a Vice President of the Issuer, and a of either the principal financial or officer, principal accounting officer or the Treasurer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At During each Marketing Period, at each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Agents, (A) concurrently if with such Representation Date shall occur at a Marketing Time, amendment or supplement or (B) immediately at if such amendment or supplement was not filed during a Marketing Period, on or before the first day of the next succeeding Marketing Time if such Representation Date shall not occur at a Marketing TimePeriod, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form reasonably satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e5(d) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principleshereof, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant settlement date or dates for the delivery sale of such Securities to the purchaser or purchasers thereofSecurities. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities Notes shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct in all material respects at the time of such acceptance and a covenant that such representations and warranties will be true and correct in all materials respects at the time of delivery to the purchaser of the Securities such Notes as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities Notes shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities Notes to the purchaser thereof, after giving effect to the issuance of such SecuritiesNotes, of any other Securities Notes to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any SecuritiesNotes) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that At each date selected by the Registration Statement or Issuer within 10 days after each filing by the Prospectus shall be amended or supplemented Issuer of any Form 10-K (other than by a Pricing Supplement"Representation Date referred to in Section 6(b)"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the President or Chairman, the President, any Vice President and a principal financial or accounting officer the Treasurer of the Issuer, in form satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to Section 5(f) or this Section 6(b) are true and correct in all material respects at the time of such amendment or supplementdate thereof, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time date of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Distributors with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorDistributors, to the effect set forth referred to in Section 5(e5(e)(i) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion or opinions delivered at the Closing Date or under this Section 6(c); provided provided, further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities Notes sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions qualifications set forth in clause (iii) of Section 5(e) hereof Schedule I hereto as to bankruptcy, insolvency, fraudulent transfer, reorganizationbankruptcy, moratorium insolvency and similar laws of general applicability relating to or affecting creditors' rights generally and equitable principles of general equity principlesapplicability, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities Notes to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Sources: Distribution Agreement (Credit Suisse First Boston Usa Inc)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); providedPROVIDED, howeverHOWEVER, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; howeverPROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided furtherPROVIDED FURTHER, howeverHOWEVER, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.that
Appears in 1 contract
Sources: Distribution Agreement (Credit Suisse First Boston Usa Inc)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented through the filing with the Commission by the Issuer of an annual report on Form 10-K (or any amendment thereto), a quarterly report on Form 10-Q (or any amendment thereto) or (if requested by the Distributor at the time of such filing) a current report on Form 8-K or any other post-effective amendment to such Registration Statement or amendment or supplement to such Prospectus (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.forth
Appears in 1 contract
Sources: Distribution Agreement (Credit Suisse First Boston Usa Inc)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented At each Selected Representation Date (other than by a Pricing Supplementas defined below), the Issuer shallIssuer, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, Time or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, will furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the Issuer signed on its behalf by the President or any Vice President and a principal financial or accounting officer of the Issuer, in form reasonably satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to Section 5(f) or this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any . Any certificate furnished under this Section 6(b) ), however, shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f5(f)(ii), to the time of delivery of such certificate.
. A "Selected Representation Date" means each time that the Registration Statement or the Prospectus is amended or supplemented (cother than by the filing of (i) At each Representation Date referred to in Section 6(b), the Issuer shalla Current Report on Form 8-K or a Quarterly Report on Form 10-Q, (Aii) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall Prospectus Supplement that does not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended Securities or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(ca Pricing Supplement), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus Final Prospectus, each as amended or supplemented at to each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Final Prospectus shall be amended or supplemented through the filing with the Commission by the Issuer of an annual report on Form 20-F, report on Form 6-K containing quarterly financial information incorporated by reference in the Registration Statement (or any amendment thereto) or (if requested by the Distributor at the time of such filing) any other report on Form 6-K or any other post-effective amendment to such Registration Statement or amendment or supplement to such Final Prospectus (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuertwo Authorized Persons, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f6(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b7(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f6(f); provided, however, that any certificate furnished under this Section 6(b7(b) shall relate to the Registration Statement and the Final Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f6(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b7(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(eSections 6(d) and (e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c7(c); provided further, however, that any opinion or opinions furnished under this Section 6(c7(c) shall relate to the Registration Statement and the Final Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iiii) of Section 5(e6(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Final Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c7(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c7(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing TimePeriod, or (B) immediately at the next Marketing Time Period if such amendment or supplement shall not occur at a Marketing TimePeriod, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); providedPROVIDED, howeverHOWEVER, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f)5(e) hereof, to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b)) on which the Registration Statement or the Prospectus shall be amended or supplemented, the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing TimePeriod, or (B) immediately at the next Marketing Time Period if such Representation Date shall not occur at a Marketing TimePeriod, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; howeverPROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c); provided furtherPROVIDED FURTHER, howeverHOWEVER, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, terms and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.settlement
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
that (a) Each acceptance by the Issuer of an offer for the purchase of Securities (whether through the Purchasing Agent as agent or to the Purchasing Agent as principal) and each delivery of Securities (whether through an Agent as agent or to one or more Agents as principal) shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Sources: Selling Agent Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being bein understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and an of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statement shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents and at the expense of the Agents, the Issuer shall cause PWC concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PWC may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents and at the expense of the Agents, the Issuer shall cause PWC concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PWC may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration StatementStatements.
(b) Each time that the Registration Statement Statements or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such amendment or supplement shall not occur at during a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, shall (A) concurrently if such Representation Date shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such Representation Date shall not occur at during a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.prior
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:: -----------------------------------
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(fclause (ii) of Sec- tion 5(e), to the time of delivery of such certificate; provided, -------- however, that the Issuer shall deliver such a certificate with respect ------- to a Representation Date arising from the incorporation by reference into the Prospectus of a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if so requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of inside counsel for the Issuer or, if so specified by the Agents and solely in connection with an amendment or supplement setting forth or incorpo- rating by reference financial statements or other information included in the Issuer's Annual Reports on Form 10-K, of Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such -------- ------- opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of the filing of the Issuer's Annual Report on Form 10-K and, upon the request of the Agents, at any other such Representation Date, the Issuer shall cause Price Waterhouse concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the -------- ------- Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Price Waterhouse may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented At each Selected Representation Date (other than by a Pricing Supplementas defined below), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form reasonably satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to Section 5(f) or this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
. A “Selected Representation Date” shall mean each time that the Registration Statement or the Prospectus is amended or supplemented (cother than by the filing of (i) At each Representation Date referred to in Section 6(b), the Issuer shalla Current Report on Form 8-K or a Quarterly Report on Form 10-Q, (Aii) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall Prospectus Supplement that does not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended Securities or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(ca Pricing Supplement), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that On each Representation Date on which the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement)Supplement or by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes) or by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes, the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Distributors with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorDistributors, to the effect set forth in Section 5(e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Sources: Distribution Agreement (Jostens Inc)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance acceptance, and it shall be a covenant condition to closing that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by (i) a Pricing SupplementSupplement or (ii) incorporation by reference of information contained in a Current Report on Form 8-K , unless such Form 8-K is required to be filed to comply with Section 4(c) hereof), the Issuer shall, (A) concurrently with promptly after such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately promptly at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor Agents pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently promptly thereafter if such Representation Date shall occur at a Marketing Time, or (B) immediately promptly at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Datedelivery thereof, of counsel for the Issuer, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e5(d) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' ’ rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "“Applicable Period" ” shall mean mean, with respect to any opinion delivered on a Representation Date pursuant to this Section 6(c), the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such the Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents, the Issuer shall cause Price Waterhouse concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Price Waterhouse may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities solicited by any Agent pursuant hereto shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofsecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered EXECUTION COPY Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement (i) that relates to an offering by the Issuer of Registered Securities other than the Securities or (ii) that solely specifies the terms of the Securities) (each such time being herein referred to as a Pricing Supplement"Representation Date"), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President Chief Executive Officer or any Vice President and a the Treasurer, any Assistant Treasurer, or any principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate; provided, however, that the Issuer shall deliver such certificate with respect to a Representation Date arising from the incorporation by reference into the Prospectus of a current report on Form 8-K or a quarterly report on Form 10-Q only upon the reasonable request of the Agents.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) if reasonably requested by the Agents, concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or Cravath, Swaine & ▇▇▇▇▇, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date on which the relevant Registration Statement or the EXECUTION COPY Prospectus shall be amended or supplemented to include additional financial information as a result of filing of the Issuer's Annual Report on Form 10-K, and upon the reasonable request of the Agents, the Issuer shall cause PWC concurrently to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance satisfactory to the Agents, to the effect set forth in Section 5(f) hereof but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, PWC may limit the scope of such letter to the audited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents, should be covered by such letter, in which event such letter shall also cover such other information and procedures as shall be agreed upon by the Agents.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Securities as the result of solicitation by any Agent pursuant hereto to make payment for and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date fixed pursuant to the purchaser or purchasers thereof. For Procedures, of the purpose Issuer's representation and warranty deemed to be made to the Agents pursuant to the last sentence of subsection (a) of this Section 6(c6, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect any Agent have any duty or obligation to exercise the judgment permitted under Section 5(b) or (c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson.
Appears in 1 contract
Sources: Agency Agreement (International Business Machines Corp)
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented At each Selected Representation Date (other than by a Pricing Supplementas defined below), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form reasonably satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to Section 5(f) or this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
. A "Selected Representation Date" shall mean each time that the Registration Statement or the Prospectus is amended or supplemented (cother than by the filing of (i) At each Representation Date referred to in Section 6(b), the Issuer shalla Current Report on Form 8-K or a Quarterly Report on Form 10-Q, (Aii) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall Prospectus Supplement that does not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended Securities or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(ca Pricing Supplement), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal chairman of the board of directors, the chief executive officer, the president, the chief financial or officer, the chief administrative officer, the chief accounting officer and any Managing Director of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); providedPROVIDED, howeverHOWEVER, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, unless otherwise waived by the Distributor, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the Distributor, to the effect set forth in Section 5(e) hereof; provided; howeverPROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided furtherPROVIDED FURTHER, howeverHOWEVER, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Sources: Distribution Agreement (Credit Suisse First Boston Usa Inc)
Additional Covenants of the Issuer. The Issuer agrees that:: ----------------------------------
(a) Each acceptance by the Issuer of an offer for the purchase of Securities Notes solicited by any Agent or a purchase of Notes by an Agent as principal, pursuant hereto shall be deemed to be an affirmation to the applicable Agent, that its the Issuer's representations and warranties contained in this Agreement are true and correct in all material respects at the time of such acceptance and a covenant that such representations and warranties will be true and correct in all material respects at the time Time of delivery Delivery to the purchaser of the Securities Notes relating to such acceptance as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement: (i) that relates to an offering by the Issuer of Registered Securities other than the Notes; (ii) that solely specifies or provides for a Pricing Supplementchange in the maturity dates, interest rates, issuance prices or other similar terms of any particular Notes sold hereunder; (iii) relating to any filing under the Exchange Act (except for Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K filed thereunder); and (iv) by any pricing supplement) (each such time and subject to the foregoing exceptions, being herein referred to as a "Representation Date"), the Issuer shall, (A) concurrently with promptly following such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting signed by an officer of the Issuer, in form satisfactory to the Distributor, Issuer to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct in all material respects at the time of such amendment or supplement, supplement as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such time and except that the statements contained in the certificate covering the matters set forth in clause (ii) of Section 5(e) shall be deemed to relate to the time of delivery of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b)Date, the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, promptly thereafter furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the IssuerIssuer Counsel or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, in form reasonably satisfactory to the DistributorAgents, substantially to the effect set forth in Section 5(e5(d) hereof; provided; however, that but modified, as necessary, to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state Date; provided, however, that in lieu --------- -------- of such opinion or opinions, counsel may furnish the Agents with a letter or letters to the effect that the Securities sold in the relevant Applicable Period (as defined belowAgents may rely on a prior opinion delivered under Section 5(d) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only or this Section 6(c) to the exceptions set forth same extent as if it were dated the date of such letter (except that statements in clause (iii) of Section 5(e) hereof as such prior opinion shall be deemed to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects relate to the description thereof contained in Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(d) At each Representation Date, the relevant Issuer shall cause its independent accountants promptly thereafter to furnish the Agents with a letter, addressed jointly to the Issuer and the Agents and dated the date of such Representation Date, in form and substance reasonably satisfactory to the Agents, substantially to the effect set forth in Section 5(f)(i), (ii) and (iv) hereof with respect to the respective matters covered therein but modified to relate to the Registration Statement and the Prospectus as amended or dates supplemented at such Representation Date, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Issuer.
(e) The Issuer agrees that any obligation of a person who has agreed to purchase Notes as the result of solicitation by any Agent pursuant hereto to make payment for the and take delivery of such Securities Notes shall be subject to the purchaser satisfaction, on such settlement date, of each of the conditions set forth in Sections 5(a), (b) and (c) (it being understood that the judgment of such person with respect to the impracticability or purchasers thereof. For the purpose inadvisability of such purchase of Notes shall be substituted, for purposes of this Section 6(c6(e), "Applicable Period" shall mean for the respective judgments of an Agent with respect to certain matters referred to in Section 5(c) and that such Agent shall have no duty or obligation whatsoever to exercise the judgment permitted under Section 5(c) on behalf of any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Dateperson).
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus Final Prospectus, each as amended or supplemented at to each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement)At each Delivery Representation Date, the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at unless otherwise waived by the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the Distributor, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shallDistributors, (A) concurrently concurrently, if such Delivery Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time Time, if such Delivery Representation Date shall not occur at a Marketing Time, furnish the Distributor Distributors with a written opinion or opinions, dated the date of such Delivery Representation Date, of U.S. counsel for the Issuer, in form satisfactory to the DistributorDistributors, to the effect set forth in Section 5(e6(e)(vi) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date pursuant to Section 6(e) or under this Section 6(c7(b); provided provided, further, however, that any opinion or opinions furnished under this Section 6(c7(b) shall relate to the Registration Statement and the Final Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period Date.
(as defined belowc) have been duly authorizedAt each Delivery Representation Date, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance shall cause KPMG AG, unless otherwise waived by the Distributors, (A) concurrently, if such Delivery Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time, if such Delivery Representation Date shall not occur at a Marketing Time, to furnish the Distributors with their termsa letter, subject only addressed jointly to the exceptions Issuer and the Distributors and dated the date of such Delivery Representation Date, in form and substance satisfactory to the Distributors, to the effect set forth in clause (iiiSection 6(g) of hereof; provided, however, that any letter furnished under this Section 5(e7(c) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects shall relate to the description thereof contained in Registration Statement and the Final Prospectus as amended or supplemented at such Delivery Representation Date, with such changes as may be necessary to reflect changes in the relevant date or dates financial statements and other information derived from the accounting records of the Issuer.
(d) Any obligation of a person who has agreed to purchase Securities to make payment for the and take delivery of such Securities shall be subject to (i) the accuracy, on the related settlement date, of the Issuer’s representation and warranty deemed to be made to the purchaser or purchasers thereof. For the purpose Distributors pursuant to subsection (a) of this Section 6(c7, and (ii) the satisfaction, on such settlement date, of each of the conditions set forth in Sections 6(a), "Applicable Period" (b) and (c), it being understood that under no circumstance shall mean with respect the Distributors have any duty or obligation to exercise the judgment permitted under Section 6(b) or (c) on behalf of any such person.
(e) To the extent that any documents are deliverable to a Distributor pursuant to Section 7(b) or 7(c) hereof, the Issuer shall not be required to deliver such documents to any opinion Distributor that is a party to the Credit Suisse Medium-Term Notes Distribution Agreement dated May 7, 2007 (the “MTN Distribution Agreement”), if such documents are delivered on a Representation Date to such Distributor pursuant to the period commencing on analogous terms of the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation DateMTN Distribution Agreement.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to for the purchase of Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the settlement date of delivery for the sale of such Securities to the purchaser thereofSecurities, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery settlement date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery settlement date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration StatementStatements.
(b) Each time that the Registration Statement Statements or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such amendment or supplement shall not occur at during a Marketing Time, furnish the Distributor Agents with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorAgents, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(e) hereof which was last furnished to the Distributor pursuant to this Section 6(b) Agents are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(e); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(e), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, shall (A) concurrently if such Representation Date shall occur at during a Marketing Time, or (B) at or immediately at prior to commencement of the next Marketing Time if such Representation Date shall not occur at during a Marketing Time, furnish the Distributor Agents with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorAgents, to the effect set forth in Section 5(e5(d) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement Statements and the Prospectus as amended or supplemented at the time of delivery of such Representation Date opinion or opinions and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfermoratorium, reorganization, moratorium and arrangement or other similar laws now or hereafter in effect affecting the rights of general applicability relating to or affecting creditors' rights creditors generally and general principles of equity principlesand rules of law governing and limiting the availability of specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law), and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant settlement date or dates for the delivery sale of such Securities to the purchaser or purchasers thereofSecurities. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date pursuant to this Section 6(c) the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date under Section 5(d) or under this Section 6(c) speaks and ending on such Representation Datethe date of delivery of the opinion to be delivered pursuant to this Section 6(c).
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) a. Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) b. Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement) (the date of any such amendment or supplement being referred to herein as a "Representation Date"), the Issuer shallshall (in the case of a Current Report on Form 8-K, upon the reasonable request of the Distributors), (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at during a Marketing Time, or (B) immediately at upon the commencement of the next Marketing Time if such amendment or supplement shall not occur at during a Marketing Time, furnish the Distributor Distributors with a certificatecertificate on behalf of the Issuer, dated the date of delivery thereof, of the President Chairman and Chief Executive Officer or any Vice President and a the principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f) hereof which was last furnished to the Distributor Distributors pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (iii) of Section 5(f), to the time of delivery of such certificate.
(c) c. At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at during a Marketing Time, or (B) immediately at upon the commencement of the next Marketing Time if such Representation Date shall not occur at during a Marketing Time, furnish the Distributor Distributors with a written opinion or opinionsopinion, dated the date of such Representation Date, of counsel for the Issuer▇▇▇▇▇▇ and ▇▇▇▇▇▇, Professional Association, in form satisfactory to the DistributorDistributors, to covering the effect matters set forth in Section 5(e) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iiiii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of Securities shall be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Securities as though made at and as of each such time, it being understood that such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time. Each such acceptance by the Issuer of an offer to purchase Securities shall be deemed to constitute an additional representation, warranty and agreement by the Issuer that, as of the date of delivery of such Securities to the purchaser thereof, after giving effect to the issuance of such Securities, of any other Securities to be issued on or prior to such delivery date and of any other Registered Securities to be issued and sold by the Issuer on or prior to such delivery date, the aggregate amount of Registered Securities (including any Securities) which have been issued and sold by the Issuer will not exceed the amount of Registered Securities registered pursuant to the Registration Statement.
(b) Each time that On each Representation Date on which the Registration Statement or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement)Supplement or by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes) or by an amendment or supplement relating solely to the terms of the Securities or a change in the principal amount of Securities remaining to be sold or similar changes, the Issuer shall, (A) concurrently with such amendment or supplement, if such amendment or supplement shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such amendment or supplement shall not occur at a Marketing Time, furnish the Distributor Distributors with a certificate, dated the date of delivery thereof, of the President or any Vice President and a principal financial or accounting officer of the Issuer, in form satisfactory to the DistributorDistributors, to the effect that the statements contained in the certificate covering the matters set forth in Section 5(f5(g) hereof which was last furnished to the Distributor Distributors pursuant to this Section 6(b) are true and correct at the time of such amendment or supplement, as though made at and as of such time or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f5(g); provided, however, that any certificate furnished under this Section 6(b) shall relate to the Registration Statement and the Prospectus as amended or supplemented at the time of delivery of such certificate and, in the case of the matters set forth in clause (ii) of Section 5(f5(g), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the Issuer shall, (A) concurrently if such Representation Date shall occur at a Marketing Time, or (B) immediately at the next Marketing Time if such Representation Date shall not occur at a Marketing Time, furnish the Distributor Distributors with a written opinion or opinions, dated the date of such Representation Date, of counsel for the Issuer, in form satisfactory to the DistributorDistributors, to the effect set forth in Section Sections 5(e) and 5(f) hereof; provided; , however, that to the extent appropriate such opinion or opinions may reconfirm matters set forth in a prior opinion delivered at the Closing Date or under this Section 6(c); provided further, however, that any opinion or opinions furnished under this Section 6(c) shall relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date and shall state that the Securities sold in the relevant Applicable Period (as defined below) have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, subject only to the exceptions set forth in clause (iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and general equity principles, and conform in all material respects to the description thereof contained in the Prospectus as amended or supplemented at the relevant date or dates for the delivery of such Securities to the purchaser or purchasers thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean with respect to any opinion delivered on a Representation Date the period commencing on the date as of which the most recent prior opinion delivered at the Closing Date or under this Section 6(c) speaks and ending on such Representation Date.
Appears in 1 contract
Sources: Distribution Agreement (Jostens Inc)