ISSUANCE OF INSTRUMENTS. 2.1 The Issuer, ABB Ltd and the Dealer(s) agrees that any Instruments which may from time to time be agreed between the Issuer, ABB Ltd and any Dealer(s) to be issued by the Issuer and purchased by such Dealer(s) shall be issued and purchased on the basis of, and in reliance upon, the representations and warranties, undertakings and indemnities made or given or provided to be made or given in this Agreement or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the Dealer(s) in respect of the relevant Instruments. Unless otherwise agreed, neither the Issuer nor any Dealer is or shall be under any obligation to sell or, as the case may be, purchase any Instruments. 2.2 Upon the conclusion of any Relevant Agreement and subject as provided in Clause 2.3: (a) the Relevant Dealer shall promptly confirm the terms of the Relevant Agreement to the Issuer (with a copy to the Fiscal Agent or, if the Relevant Agreement relates to the sale of Instruments in registered form, the Registrar) in writing (by letter, telex, fax or e-mail); (b) the Issuer shall promptly confirm, as appropriate, such terms to the Fiscal Agent or, as the case may be, the Registrar in writing, and the Relevant Dealer or, if such Dealer so agrees with the Issuer, the Issuer will prepare a Pricing Supplement in relation to the relevant Instruments for approval (such approval not to be unreasonably withheld or delayed) by the Issuer or, as the case may be, the Relevant Dealer and for execution on behalf of the Issuer and the relevant Dealer(s); (c) the Issuer shall on the agreed date of issue of the relevant Instruments procure the issue of such Instruments in the relevant form (subject to amendment and completion) scheduled to the Fiscal Agency Agreement and shall procure their delivery to or to the order of the relevant Dealer(s); (d) the Dealer(s) shall for value on the agreed date of issue of the relevant Instruments procure the payment of the net subscription moneys therefor (namely the agreed issue or sale price thereof plus any accrued interest and less any agreed commissions, concessions or other agreed deductibles) to or to the order of the Issuer by credit transfer to such account as may have been specified by or on behalf of the Issuer to the Relevant Dealer for the purpose; and (e) where a single Dealer has agreed with the Issuer to subscribe a particular tranche pursuant to this Clause 2, if requested by the Relevant Dealer in relation to such Tranche the Issuer, ABB Ltd and the Relevant Dealer shall enter into a subscription agreement based on the form set out in Schedule 4 to this Agreement or such other form as may be agreed between the Issuer, ABB Ltd and the Relevant Dealer. 2.3 The obligations of the Dealer(s) under Clause 2.2(d) are conditional upon: (a) the agreement by the Issuer and the Relevant Dealer to the terms of the relevant Pricing Supplement; (b) the execution of the relevant Pricing Supplement by or on behalf of the Issuer and the relevant Dealer(s) and the delivery of a copy thereof to each party; (c) the delivery to or to the order of the Dealer(s) of the temporary global instrument representing the relevant Instruments and/or, as the case may be, the relevant Instruments in registered form to be held to the order of the Issuer pending receipt by the Issuer of the net subscription moneys payable to it in respect of the relevant Instruments; (d) there having been, in the opinion of the Relevant Dealer acting in good faith, since the date of the Relevant Agreement, no adverse change in the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole that is material in the context of issuance under the Programme nor, since the date of the Relevant Agreement, any change in the rating accorded by an internationally recognised rating agency to any security of the Issuer or ABB Ltd nor a change which has a material adverse effect on the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole; (e) the truth and correctness in all material respects of the representations and warranties on the part of the Issuer and ABB Ltd contained herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments and there having been no event rendering untrue or incorrect in any material respect any of such representations or warranties as though they had been made and given on the date of the Relevant Agreement and on the agreed date of issue of the relevant Instruments, with reference in each case to the facts and circumstances then subsisting; (f) neither the Issuer nor ABB Ltd being in material breach of any of its undertakings set out herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments; (g) there having been, since the date of the Relevant Agreement and in the opinion of the Relevant Dealer acting in good faith, no such change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in its view, be likely to prejudice materially the placement, offering, distribution or sale of the relevant Instruments (whether in the primary market or in respect of dealings in the secondary market); (h) the Dealers acting in good faith being satisfied that all authorisations, consents, approvals, filings and registrations, if any, required by any jurisdiction to which the Issuer or ABB Ltd is subject or in the country of origin of the currency or currencies in which the relevant Instruments are denominated or payable or required because of the term or other characteristics of the relevant Instruments, having been obtained and being in full force and effect or having been effected and, where relevant, certified translations thereof into English having been supplied to the Relevant Dealer; and (i) (in the case of Instruments which are to be listed on SWX and/or which are to be listed on such other stock exchange as may have been agreed between the Issuer, ABB Ltd and the relevant Dealer(s)) SWX having approved the Programme. 2.4 The Relevant Dealer, on behalf of itself only, or, as the case may be, the other Dealer(s) party to the Relevant Agreement in question may, in its absolute discretion, waive any of the conditions set out in Clause 2.3 in writing to the Issuer in so far only as they relate to an issue of Instruments by the Issuer to such Dealer(s) and any condition so waived shall be deemed to have been satisfied as regards such Dealer(s) alone. If any of the conditions set out in Clause 2.3 are not satisfied or, as the case may be, waived by the Relevant Dealer on or before the issue date of any relevant Tranche, the Relevant Dealer shall, subject as mentioned below, be entitled to terminate the Relevant Agreement and, in that event, the parties to such Relevant Agreement shall be released and discharged from their respective obligations thereunder (except for any rights or liabilities which may have arisen pursuant to Clauses 3, 4, 5 or 6 of this Agreement). 2.5 If the Relevant Dealer, in connection with the distribution of any Tranche of Instruments, offers Instruments in excess of the aggregate principal amount to be issued or effects transactions with a view to stabilising or maintaining the market price of the Instruments at levels other than those which might otherwise prevail in the open market, it shall not in doing so be deemed to act as agent of the Issuer but rather as principal. The Issuer will not as a result of any action taken by such Dealer, under this Clause be obliged to issue Instruments in excess of the aggregate amount of Instruments agreed to be issued, nor shall the Issuer be liable for any loss, or entitled to any profit, arising from any excess offers or stabilisation. 2.6 The Dealer who is specified in the applicable Pricing Supplement relating to any Tranche of Instruments as the Stabilising Manager (or any duly appointed person acting for such Stabilising Manager) may over-allot or effect transactions with a view to supporting the market price of the Instruments of the Series of which such Tranche forms part at a level higher than that which might otherwise prevail. However, there is no assurance that the Stabilising Manager (or any agent of the Stabilising Manager) will undertake stabilisation action. Any stabilisation action may begin on or after the date on which adequate public disclosure of the terms of the offer of the Tranche of Instruments is made and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issue date of the Tranche of Instruments and 60 days after the date of the allotment of the relevant Tranche of Instruments.
Appears in 1 contract
Sources: Dealership Agreement (Abb LTD)
ISSUANCE OF INSTRUMENTS. 2.1 The Issuer, ABB Ltd and the Dealer(s) agrees that any Instruments which may from time to time be agreed between the Issuer, ABB Ltd and any Dealer(s) to be issued by the Issuer and purchased by such Dealer(s) shall be issued and purchased on the basis of, and in reliance upon, the representations and warranties, undertakings and indemnities made or given or provided to be made or given in this Agreement or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the Dealer(s) in respect of the relevant Instruments. Unless otherwise agreed, neither the Issuer nor any Dealer is or shall be under any obligation to sell or, as the case may be, purchase any Instruments.
2.2 Upon the conclusion of any Relevant Agreement and subject as provided in Clause 2.3:
(a) the Relevant Dealer shall promptly confirm the terms of the Relevant Agreement to the Issuer (with a copy to the Fiscal Agent or, if the Relevant Agreement relates to the sale of Instruments in registered form, the Registrar) in writing (by letter, telex, fax telex or e-mailfax);
(b) the Issuer shall promptly confirm, as appropriate, such terms to the Fiscal Agent or, as the case may be, the Registrar in writing, and the Relevant Dealer or, if such Dealer so agrees with the Issuer, the Issuer will prepare a Pricing Supplement in relation to the relevant Instruments for approval (such approval not to be unreasonably withheld or delayed) by the Issuer or, as the case may be, the Relevant Dealer and for execution on behalf of the Issuer and the relevant Dealer(s);
(c) the Issuer shall on the agreed date of issue of the relevant Instruments procure the issue of such Instruments in the relevant form (subject to amendment and completion) scheduled to the Fiscal Agency Agreement and shall procure their delivery to or to the order of the relevant Dealer(s);
(d) the Dealer(s) shall for value on the agreed date of issue of the relevant Instruments procure the payment of the net subscription moneys therefor (namely the agreed issue or sale price thereof plus any accrued interest and less any agreed commissions, concessions or other agreed deductibles) to or to the order of the Issuer by credit transfer to such account as may have been specified by or on behalf of the Issuer to the Relevant Dealer for the purpose; and
(e) where a single Dealer has agreed with the Issuer to subscribe a particular tranche pursuant to this Clause 2, if requested by the Relevant Dealer in relation to such Tranche the Issuer, ABB Ltd and the Relevant Dealer shall enter into a subscription agreement based on the form set out in Schedule 4 to this Agreement or such other form as may be agreed between the Issuer, ABB Ltd and the Relevant Dealer.
2.3 The obligations of the Dealer(s) under Clause 2.2(d) are conditional upon:
(a) the agreement by the Issuer and the Relevant Dealer to the terms of the relevant Pricing Supplement;
(b) the execution of the relevant Pricing Supplement by or on behalf of the Issuer and the relevant Dealer(s) and the delivery of a copy thereof to each party;
(c) the delivery to or to the order of the Dealer(s) of the temporary global instrument representing the relevant Instruments and/or, as the case may be, the relevant Instruments in registered form to be held to the order of the Issuer pending receipt by the Issuer of the net subscription moneys payable to it in respect of the relevant Instruments;
(d) there having been, in the opinion of the Relevant Dealer acting in good faith, since the date of the Relevant Agreement, no adverse change in the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole that is material in the context of issuance under the Programme nor, since the date of the Relevant Agreement, any change in the rating accorded by an internationally recognised rating agency to any security of the Issuer or ABB Ltd nor a change which has a material adverse effect on the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole;
(e) the truth and correctness in all material respects of the representations and warranties on the part of the Issuer and ABB Ltd contained herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments and there having been no event rendering untrue or incorrect in any material respect any of such representations or warranties as though they had been made and given on the date of the Relevant Agreement and on the agreed date of issue of the relevant Instruments, with reference in each case to the facts and circumstances then subsisting;
(f) neither the Issuer nor ABB Ltd being in material breach of any of its undertakings set out herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments;
(g) there having been, since the date of the Relevant Agreement and in the opinion of the Relevant Dealer acting in good faith, no such change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in its view, be likely to prejudice materially the placement, offering, distribution or sale of the relevant Instruments (whether in the primary market or in respect of dealings in the secondary market);
(h) the Dealers acting in good faith being satisfied that all authorisations, consents, approvals, filings and registrations, if any, required by any jurisdiction to which the Issuer or ABB Ltd is subject or in the country of origin of the currency or currencies in which the relevant Instruments are denominated or payable or required because of the term or other characteristics of the relevant Instruments, having been obtained and being in full force and effect or having been effected and, where relevant, certified translations thereof into English having been supplied to the Relevant Dealer; and
(i) (in the case of Instruments which are to be listed on SWX and/or which are to be listed on such other stock exchange as may have been agreed between the Issuer, ABB Ltd and the relevant Dealer(s)) SWX having approved the Programme.
2.4 The Relevant Dealer, on behalf of itself only, or, as the case may be, the other Dealer(s) party to the Relevant Agreement in question may, in its absolute discretion, waive any of the conditions set out in Clause 2.3 in writing to the Issuer in so far only as they relate to an issue of Instruments by the Issuer to such Dealer(s) and any condition so waived shall be deemed to have been satisfied as regards such Dealer(s) alone. If any of the conditions set out in Clause 2.3 are not satisfied or, as the case may be, waived by the Relevant Dealer on or before the issue date of any relevant Tranche, the Relevant Dealer shall, subject as mentioned below, be entitled to terminate the Relevant Agreement and, in that event, the parties to such Relevant Agreement shall be released and discharged from their respective obligations thereunder (except for any rights or liabilities which may have arisen pursuant to Clauses 3, 4, 5 or 6 of this Agreement).
2.5 If the Relevant Dealer, in connection with the distribution of any Tranche of Instruments, offers Instruments in excess of the aggregate principal amount to be issued or effects transactions with a view to stabilising or maintaining the market price of the Instruments at levels other than those which might otherwise prevail in the open market, it shall not in doing so be deemed to act as agent of the Issuer but rather as principal. The Issuer will not as a result of any action taken by such Dealer, under this Clause be obliged to issue Instruments in excess of the aggregate amount of Instruments agreed to be issued, nor shall the Issuer be liable for any loss, or entitled to any profit, arising from any excess offers or stabilisation.
2.6 The Dealer who is specified as the Stabilising Manager in the applicable Pricing Supplement relating to any Tranche of Instruments as the Stabilising Manager (or any duly appointed person acting for such Stabilising Manager) may over-allot or effect transactions with a view to supporting the market price of the Instruments of the Series of which such Tranche forms part at a level higher than that which might otherwise prevail. However, there is no assurance that obligation on the Stabilising Manager (or any agent of the Stabilising Manager) will undertake stabilisation actionto do this. Any stabilisation action may begin on or after the date on which adequate public disclosure of the terms of the offer of the Tranche of Instruments is made andSuch stabilising, if beguncommenced, may be ended discontinued at any time. Such stabilising shall be conducted in accordance with all applicable laws and rules. Any loss or profit sustained as a consequence of any such over-allotment or stabilising shall, but it must end no later than as against the earlier of 30 days after Issuer, be for the issue date account of the Tranche of Instruments and 60 days after the date of the allotment of the relevant Tranche of InstrumentsStabilising Manager.
Appears in 1 contract
Sources: Dealership Agreement (Abb LTD)
ISSUANCE OF INSTRUMENTS. 2.1 The Issuer, ABB Ltd and the Dealer(s) agrees agree that any Instruments which may from time to time be agreed between the Issuer, ABB Ltd and any Dealer(s) to be issued by the Issuer and purchased by such Dealer(s) shall be issued and purchased on the basis of, and in reliance upon, the representations and warranties, undertakings and indemnities made or given or provided to be made or given in this Agreement or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the Dealer(s) in respect of the relevant Instruments. Unless otherwise agreed, neither the Issuer nor any Dealer is or shall be under any obligation to sell or, as the case may be, purchase any Instruments.
2.2 Upon the conclusion of any Relevant Agreement and subject as provided in Clause 2.3:
(a) the Relevant Dealer shall promptly confirm the terms of the Relevant Agreement to the Issuer (with a copy to the Fiscal Agent or, if the Relevant Agreement relates to the sale of Instruments in registered form, the Registrar) in writing (by letter, telex, fax or e-mail);
(b) the Issuer shall promptly confirm, as appropriate, such terms to the Fiscal Agent or, as the case may be, the Registrar in writing, and the Relevant Dealer or, if such Dealer so agrees with the Issuer, the Issuer will prepare a Pricing Supplement in relation to the relevant Instruments for approval (such approval not to be unreasonably withheld or delayed) by the Issuer or, as the case may be, the Relevant Dealer and for execution on behalf of the Issuer and the relevant Dealer(s);
(c) the Issuer shall on the agreed date of issue of the relevant Instruments procure the issue of such Instruments in the relevant form (subject to amendment and completion) scheduled to the Fiscal Agency Agreement and shall procure their delivery to or to the order of the relevant Dealer(s);
(d) the Dealer(s) shall for value on the agreed date of issue of the relevant Instruments procure the payment of the net subscription moneys therefor (namely the agreed issue or sale price thereof plus any accrued interest and less any agreed commissions, concessions or other agreed deductibles) to or to the order of the Issuer by credit transfer to such account as may have been specified by or on behalf of the Issuer to the Relevant Dealer for the purpose; and
(e) where a single Dealer has agreed with the Issuer to subscribe a particular tranche pursuant to this Clause 2, if requested by the Relevant Dealer in relation to such Tranche the Issuer, ABB Ltd and the Relevant Dealer shall enter into a subscription agreement based on the form set out in Schedule 4 to this Agreement or such other form as may be agreed between the Issuer, ABB Ltd and the Relevant Dealer.
2.3 The obligations of the Dealer(s) under Clause 2.2(d) are conditional upon:
(a) the agreement by the Issuer and the Relevant Dealer to the terms of the relevant Pricing Supplement;
(b) the execution of the relevant Pricing Supplement by or on behalf of the Issuer and the relevant Dealer(s) and the delivery of a copy thereof to each party;
(c) the delivery to or to the order of the Dealer(s) of the temporary global instrument representing the relevant Instruments and/or, as the case may be, the relevant Instruments in registered form to be held to the order of the Issuer pending receipt by the Issuer of the net subscription moneys payable to it in respect of the relevant Instruments;
(d) there having been, in the opinion of the Relevant Dealer acting in good faith, since the date of the Relevant Agreement, no adverse change in the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole that is material in the context of issuance under the Programme nor, since the date of the Relevant Agreement, any change in the rating accorded by an internationally recognised rating agency to any security of the Issuer or ABB Ltd nor a change which has a material adverse effect on the financial condition of the Issuer or of ABB Ltd and its subsidiaries taken as a whole;
(e) the truth and correctness in all material respects of the representations and warranties on the part of the Issuer and ABB Ltd contained herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments and there having been no event rendering untrue or incorrect in any material respect any of such representations or warranties as though they had been made and given on the date of the Relevant Agreement and on the agreed date of issue of the relevant Instruments, with reference in each case to the facts and circumstances then subsisting;
(f) neither the Issuer nor ABB Ltd being in material breach of any of its undertakings set out herein or in writing in any Relevant Agreement or in writing in any other agreement between the Issuer, ABB Ltd and the relevant Dealer(s) in respect of the relevant Instruments;
(g) there having been, since the date of the Relevant Agreement and in the opinion of the Relevant Dealer acting in good faith, no such change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in its view, be likely to prejudice materially the placement, offering, distribution or sale of the relevant Instruments (whether in the primary market or in respect of dealings in the secondary market);
(h) the Dealers acting in good faith being satisfied that all authorisations, consents, approvals, filings and registrations, if any, required by any jurisdiction to which the Issuer or ABB Ltd is subject or in the country of origin of the currency or currencies in which the relevant Instruments are denominated or payable or required because of the term or other characteristics of the relevant Instruments, having been obtained and being in full force and effect or having been effected and, where relevant, certified translations thereof into English having been supplied to the Relevant Dealer; and
(i) (in the case of Instruments which are to be listed on SWX and/or which are to be listed on such other stock exchange as may have been agreed between the Issuer, ABB Ltd and the relevant Dealer(s)) SWX having approved the Programme.
2.4 The Relevant Dealer, on behalf of itself only, or, as the case may be, the other Dealer(s) party to the Relevant Agreement in question may, in its absolute discretion, waive any of the conditions set out in Clause 2.3 in writing to the Issuer in so far only as they relate to an issue of Instruments by the Issuer to such Dealer(s) and any condition so waived shall be deemed to have been satisfied as regards such Dealer(s) alone. If any of the conditions set out in Clause 2.3 are not satisfied or, as the case may be, waived by the Relevant Dealer on or before the issue date of any relevant Tranche, the Relevant Dealer shall, subject as mentioned below, be entitled to terminate the Relevant Agreement and, in that event, the parties to such Relevant Agreement shall be released and discharged from their respective obligations thereunder (except for any rights or liabilities which may have arisen pursuant to Clauses 3, 4, 5 or 6 of this Agreement).
2.5 If the Relevant Dealer, in connection with the distribution of any Tranche of Instruments, offers Instruments in excess of the aggregate principal amount to be issued or effects transactions with a view to stabilising or maintaining the market price of the Instruments at levels other than those which might otherwise prevail in the open market, it shall not in doing so be deemed to act as agent of the Issuer but rather as principal. The Issuer will not as a result of any action taken by such Dealer, under this Clause be obliged to issue Instruments in excess of the aggregate amount of Instruments agreed to be issued, nor shall the Issuer be liable for any loss, or entitled to any profit, arising from any excess offers or stabilisation.
2.6 The Dealer who is specified in the applicable Pricing Supplement relating to any Tranche of Instruments as the Stabilising Manager (or any duly appointed person acting for such Stabilising Manager) may over-allot or effect transactions with a view to supporting the market price of the Instruments of the Series of which such Tranche forms part at a level higher than that which might otherwise prevail. However, there is no assurance that the Stabilising Manager (or any agent of the Stabilising Manager) will undertake stabilisation action. Any stabilisation action may begin on or after the date on which adequate public disclosure of the terms of the offer of the Tranche of Instruments is made and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issue date of the Tranche of Instruments and 60 days after the date of the allotment of the relevant Tranche of Instruments.
Appears in 1 contract
Sources: Dealership Agreement (Abb LTD)