Representations and Warranties of the Issuer. The Issuer represents and warrants that: 2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement. 2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws. 2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). 2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended. 2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer. 2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes. 2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement. 2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement. 2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. 2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 2 contracts
Sources: Commercial Paper Dealer Agreement (SOUTH JERSEY GAS Co), Commercial Paper Dealer Agreement (South Jersey Gas Co/New)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, formed and validly existing and in good standing under the laws of the jurisdiction of its incorporation formation and has all the requisite limited partnership power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorizedauthorized by the Issuer, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming the offer and sale of the Notes in Section 1.6(j) hereofthe manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, be obtained or is otherwise required in connection with made by the Issuer under any material statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any consensual mortgage, lien, charge lien or similar encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under under, as the case may be, any of the terms of the Issuer’s charter documents certificate of limited partnership or by-lawsagreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any statutory law or regulationregulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default might could reasonably be expected to have a material adverse effect on the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that the Issuer makes no representation or warranty as to Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth above in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementwriting.
Appears in 2 contracts
Sources: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp), Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as otherwise disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could would reasonably be expected to result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, or under the Issuing and Paying Agent Agency Agreement.
Appears in 2 contracts
Sources: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (Wyndham Worldwide Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants thatto the Dealer as follows:
2.1 (a) The Issuer is a corporation home-rule municipality, duly organized, organized and validly existing and in good standing under the laws of the jurisdiction State of its incorporation Texas, and has all the requisite full power and authority to execute, deliver and perform its obligations under issue the Notes, to enter into, perform and observe the covenants and agreements on its part contained in this Agreement and Agreement, the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement , the Note Ordinance and the Issuing Notes (collectively, the “Documents”) and Paying Agency Agreement to carry out and consummate all transactions contemplated by the Documents, and the Documents have been duly authorized, executed and delivered by the Issuer and Issuer. The Documents constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to the exercise of judicial discretion in accordance with general principles of equity and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in effect affecting creditors’ rights, to the extent constitutionally applicable.
(regardless of whether enforcement b) The Issuer has adopted the Note Ordinance at a meeting that was duly called and at which a quorum was present and acting throughout. The Note Ordinance is sought in a proceeding in equity full force and effect and has not been modified or at law) amended since its adoption. The Issuer has also duly authorized its City Manager and except as enforceability of the indemnification provisions of Chief Financial Officer to execute and deliver this Agreement may be limited by federal securities lawsand the other Documents.
2.3 (c) The Notes have been duly authorizedauthorized and executed by the Issuer, and when issued as provided in authenticated and delivered by the Issuing and Paying Agency Agreement, will be duly and validly issued and Agent will constitute legal, valid and binding obligations notes of the Issuer enforceable against the Issuer and will be in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generallyconformity with, and subject, as entitled to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofbenefit of, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 Note Ordinance. The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except be issued solely as provided Book-Entry Commercial Paper Notes, as defined in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement, except as may be required by and the securities or Blue Sky laws of Issuer will not issue certificated Commercial Paper Notes, without amending the various states in connection with offering memorandum for the offer and sale of Commercial Paper Notes (the “Offering Memorandum”) to provide material information relating to the certificated Commercial Paper Notes.
2.7 Neither (d) The information relating to the execution and delivery of this Agreement Notes and the Issuing and Paying Agency Agreement, nor Issuer contained in the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof Offering Memorandum prepared by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (ae) There are no consents, authorization or approvals of, or filings with, any Federal or state government authority (other than the Issuer) required in connection with the issuance of Notes or sale by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum Notes or the performance of its obligations thereunder except as may be required by state securities laws and those which have already been obtained or made.
(f) Adoption of the Note Ordinance and the execution, delivery and performance by the Issuer of this Agreement, the Notes, and the Documents have not and will not result in a breach or violation of, conflict with, or constitute a default under any law, regulation, order, judgment, agreement or instrument to which the Issuer is a party or by which the Issuer or any of its property is bound.
(g) There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Notes and the Documents, or any other agreement or instrument to which the Issuer is a party and which has been or will be executed in connection with the issuance of the Notes.
(h) Each delivery of Notes to the Dealer shall be deemed a representation and warranty by the Issuer to the DealerIssuer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, that (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly authorized, issued and delivered and, upon payment therefor, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally (ii) the representations and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations warranties of the Issuer which has not been disclosed to the Dealer set forth in writing paragraphs (a) through (g) of this Section 7 are true and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementcorrect as if made on such date.
Appears in 2 contracts
Sources: Dealer Agreement, Dealer Agreement
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants thatto the Stockholders that as of the date of this Agreement:
2.1 The Issuer (a) It is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its incorporation and Delaware, it has all the requisite full power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Notestransactions contemplated hereby, and the execution, delivery and performance by it of this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and consummation of the Issuing and Paying Agency Agreement transactions contemplated hereby have been duly authorized, authorized by all necessary corporate action;
(b) This Agreement has been duly and validly executed and delivered by the Issuer and, assuming the due execution and constitute legaldelivery of this Agreement by the other parties hereto, valid this Agreement constitutes a legal and binding obligations obligation of the Issuer Issuer, enforceable against the Issuer in accordance with their terms subject to its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or similar laws Laws affecting the enforcement of creditors’ rights generally, or remedies generally and subject, as to enforceability, to by the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought considered in a proceeding in equity or at law).; and
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2(c) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or and performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery Issuer of this Agreement and the Issuing and Paying Agency Agreement, nor consummation by the issuance Issuer of the Notes in accordance transactions contemplated hereby will not, with or without the Issuing and Paying Agency Agreementgiving of notice or lapse of time, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuerboth, will (i) result in violate any provision of Law, statute, rule or regulation to which the creation or imposition of any mortgageIssuer is subject, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate any order, judgment or decree applicable to the Issuer or (iii) conflict with, or result in a breach or a default under under, any of the terms term or condition of the Issuer’s charter organizational documents or by-laws, any contract agreement or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (ZoomInfo Technologies Inc.), Stockholders Agreement (ZoomInfo Technologies Inc.)
Representations and Warranties of the Issuer. The Issuer hereby warrants and represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.Agent, and, each request to issue Commercial Paper Notes shall constitute the Issuer's continuing warranty and representation, as follows:
2.2 (a) This Agreement is, and all Commercial Paper Notes delivered to the Issuing and Paying Agency Agent pursuant to this Agreement have been will be, duly authorized, executed and delivered by the Issuer Issuer.
(b) This Agreement constitutes, and constitute the Commercial Paper Notes, when completed, countersigned, and delivered pursuant hereto, will constitute, the Issuer's legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable except as such enforceability may be limited by bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting creditors’ the rights generally, of creditors generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
2.4 Assuming compliance by (c) The Issuer is duly organized and validly existing under the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale laws of the Notes in State of Texas and no liquidation, dissolution, bankruptcy, windup or similar proceedings have been instituted with respect to the manner contemplated hereby Issuer.
(d) The Issuer has, and at all relevant times has had, all necessary power and authority to execute, deliver and perform this Agreement and to issue the Commercial Paper Notes.
(e) All actions on the part of the Issuer which are required for the authorization of the issuance of the Commercial Paper Notes, and for the authorization, execution, delivery and performance of this Agreement, do not require registration the approval or consent of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect any holder or trustee of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated any indebtedness or obligations of the Issuer.
2.6 Except as provided in Section 1.6(j(f) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the The issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Commercial Paper Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) does not and will not contravene any provision of any governmental law, regulation or rule applicable to the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such dateIssuer, and
(ii) in does not and will not conflict with, breach or contravene the case provisions of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and any contract or other instrument binding obligations of upon the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 2 contracts
Sources: Issuing and Paying Agent Agreement, Issuing and Paying Agent Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofthis Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6(j) hereofthis Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries (other than that which could reasonably be expected to is disclosed in the Company Information) which might result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 The Issuer has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Issuer, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions in all material respects, and the Issuer, its Subsidiaries and their respective officers and, to the knowledge of the Issuer, its directors and employees, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Issuer, any Subsidiary or, to the knowledge of the Issuer, any of their respective directors, officers or employees, or (b) to the knowledge of the Issuer, any agent of the Issuer or any agent of any Subsidiary that will act in any capacity in connection with or benefit from the issuance of the Notes contemplated hereby, is a Sanctioned Person. No issuance of Notes or use of proceeds thereof will violate any Anti-Corruption Law or applicable Sanctions in any material respect.
2.12 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunderunder (a) the Notes, under the Notes or, or (b) in any material respect, under this Agreement or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Moodys Corp /De/)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofthis Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6(j) hereofthis Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementMaterial Adverse Effect.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries (other than that which could is disclosed in the Company Information) which would reasonably be expected to result in have a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementMaterial Adverse Effect.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries (acting on behalf of the Issuer or any of its subsidiaries) (i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other similar payment in violation of the law applicable to the Issuer or such subsidiary, or (ii) is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a violation or a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and the Issuer and its subsidiaries have each conducted their businesses in compliance with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer and its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries (i) is currently the subject of any restrictive trade sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (which, as of the date of this Agreement, are Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries.
2.16 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunderunder (a) the Notes, under the Notes or, or (b) in any material respect, under this Agreement or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreementeach Program Document to which it is party.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofthis Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6(j) hereofthis Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and each Program Document by the Issuing and Paying Agency AgreementIssuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-lawslaws of the Issuer, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the financial condition or operations of the Issuer, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement.
2.8 Except as otherwise disclosed in any filings made by the Issuer with the SEC, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer, threatened, against or affecting the Issuer or any of its Subsidiaries (other than that which is disclosed in the Company Information) which is reasonably likely to result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries (in each case, acting on behalf of the Issuer or any of its Subsidiaries)
(i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other payment of any kind whatsoever in violation of the law applicable to the Issuer or such Subsidiary, or (ii) is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a violation or a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and the Issuer and its Subsidiaries have each conducted their businesses in compliance with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its Subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer or any of its Subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries (i) is currently the subject of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (which, as of the date of this Agreement, are Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its Subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its Subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries except to the extent it may become permissible to do so under applicable laws.
2.16 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunder, under (a) the Notes or, or (b) in any material respect, under this Agreement or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Autonation, Inc.)
Representations and Warranties of the Issuer. (a) The Issuer represents and warrants thatas follows:
2.1 (i) The Issuer is a corporation duly organized, organized and validly existing and corporation in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to executeown its property, to carry on its business as presently being conducted, to execute and deliver this Agreement, the Issuing and perform its obligations under Paying Agency Agreement, and the Notes, and to perform and observe the conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer and constitute constitutes the legal, valid and binding obligations agreement of the Issuer enforceable against Issuer. The issuance and sale of Notes by the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes hereunder have been duly authorizedand validly authorized by the Issuer and, when delivered by the Issuing and when issued Paying Agent as provided in the Issuing and Paying Agency Agreement, each Note will be duly and validly issued and will constitute the legal, valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)Issuer.
2.4 (iii) Assuming compliance that the Notes are offered and sold in the manner contemplated by the Dealer with the procedures applicable to it set forth in Section 1 hereof6 below, the offer and sale by the Issuer of such Notes will constitute exempt transactions under Section 4(2) of the Notes in the manner contemplated hereby do not require 1933 Act and Rule 506 thereunder, and, accordingly, registration of the Notes under the Securities Act, pursuant 1933 Act will not be required. Qualification of an indenture with respect to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended, will not be required in connection with the offer, issuance, sale or delivery of the Notes.
2.5 (iv) The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness Issuer is neither an "investment company" nor a "company controlled by an investment company" within the meaning of the IssuerInvestment Company Act of 1940, as amended.
2.6 Except as provided in Section 1.6(j(v) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, authority is required to authorize, or is otherwise required in connection with with, the execution, delivery or performance of, of this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities Agreement or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 (vi) Neither the execution and delivery by the Issuer of any of this Agreement and Agreement, the Issuing and Paying Agency Agreement, nor Agreement and the issuance of the Notes in accordance with the Issuing and Paying Agency AgreementNotes, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (ix) result in the creation or of imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, Issuer or (iiy) violate or result in a breach or a default under any of the terms of the Issuer’s 's charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government governmental instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Sources: Commercial Paper Placement Agency Agreement (Harsco Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, the Notes will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any material contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Policies and procedures have been implemented and maintained by or on the Issuer’s behalf that are designed to achieve compliance by it and its Subsidiaries and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such person’s business and activities. The Issuer and its Subsidiaries, and to the knowledge of the Issuer their respective directors, officers and employees, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither it nor any of its Subsidiaries nor, to its knowledge any of their respective directors, officers, employees, agents or affiliates, is a person that is, or is owned or controlled by any person that is: (i) the subject of any international economic sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or any governmental authority or regulatory body in Canada (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.
2.12 The Issuer shall not, directly or indirectly, use the proceeds of any Notes, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person, in each case, (A) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any person.
2.13 Except as would not, individually or in the aggregate, have a material adverse effect, the operations of the Issuer and its Subsidiaries are conducted in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any applicable related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or regulatory body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.14 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which could reasonably be expected to affect the Issuer’s ability to perform its obligations hereunder or under the Notes which has not been disclosed to the Dealer in writing or publicly available and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, or under the Issuing and Paying Agent Agency Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Initial Purchaser, as of the date hereof and as of the Closing Date (it being understood that any representation and warranty with respect to the Initial Preliminary Memorandum or the Second Preliminary Memorandum is made as of the date hereof, and any representation and warranty with respect to the Final Memorandum is made as of the Closing Date), that:
2.1 (i) The Initial Preliminary Memorandum, the Second Preliminary Memorandum and any additional information and documents concerning the Purchased Notes, including but not limited to one or more marketing books or preliminary offering circulars, delivered by or on behalf of the Issuer to prospective purchasers of the Purchased Notes (collectively, such additional information and documents, the "Additional Offering Documents"), did not, each as of their respective dates or the date on which such statement was made and, with respect to the Final Memorandum and any Additional Offering Documents, in each case as of the date thereof and as of the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in each, in light of the circumstances under which they were made, not misleading; provided that (i) no representation or warranty is being made as to the information contained in or omitted from the Final Memorandum or the Additional Offering Documents furnished in writing by or on behalf of the Initial Purchaser referenced in the last sentence of Section 8(a) herein and (ii) no representation or warranty is being made as to any statements or omissions made in any Additional Offering Documents to the extent such statements or omissions were corrected, included or clarified in any subsequent Additional Offering Documents or in the Final Memorandum.
(ii) [Reserved].
(iii) The Issuer is a corporation duly organized, organized and validly existing and in good standing under the laws of the its jurisdiction of organization, has all power and authority necessary to own or hold its incorporation properties and conduct its business in which it is engaged as described in each Memorandum and has all licenses necessary to carry on its business as it is now being conducted and is licensed and qualified in each jurisdiction in which the requisite power conduct of its business (including, without limitation, acquisition of Collateral Obligations and authority to execute, deliver and perform performing its obligations hereunder and under the Notesother Transaction Documents) requires such licensing or qualification and in which the failure so to qualify would have a material adverse effect on the business, this Agreement and the Issuing and Paying Agency Agreementproperties, assets, or (financial) of such entity.
2.2 (iv) This Agreement and the Issuing and Paying Agency Agreement have has been duly authorized, executed and delivered by the Issuer and, assuming due authorization, execution and constitute legaldelivery thereof by the other parties hereto, constitutes a valid and legally binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their terms subject its terms, subject, as to applicable enforcement only, to the effect of bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generallygenerally or the application of equitable principles in any proceeding, whether at law or in equity.
(v) Each of the other Transaction Documents has been or will be, prior to the Closing Date, duly authorized, executed and delivered by the Issuer and, assuming due authorization, execution and delivery thereof by the other parties thereto, constitutes a valid and binding agreement enforceable against the Issuer in accordance with their respective terms, subject, as to enforceabilityenforcement only, to general the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or the application of equitable principles of equity (regardless of in any proceeding, whether enforcement is sought at law or in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities lawsequity.
2.3 (vi) The Notes have been or will be, prior to the Closing Date, duly authorized, and when issued as provided executed and authenticated in accordance with the Issuing Indenture and Paying Agency delivered to and paid for by the Initial Purchaser in accordance with this Agreement, will be duly and validly issued and the Notes will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject subject, as to applicable enforcement only, to the effect of bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generallygenerally or the application of equitable principles in any proceeding, whether at law or in equity, and subject, as will be entitled to enforceability, to general principles the benefits of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)the Indenture.
2.4 Assuming compliance by (vii) (i) as of the Dealer with the procedures applicable to it date hereof, other than as set forth in Section 1 hereofor contemplated by the Initial Preliminary Memorandum or the Second Preliminary Memorandum, and (ii) as of the offer Closing Date, other than as set forth in or contemplated by the Final Memorandum, there are no legal or governmental proceedings pending to which the Issuer is a party or of which any property or assets of the Issuer are the subject of which could reasonably be expected to materially adversely affect the financial position, stockholders’ or members’ equity or results of operations of the Issuer or on the performance by the Issuer of its obligations hereunder or under the other Transaction Documents to which it is a party.
(viii) The execution, delivery and performance of this Agreement and the other Transaction Documents to which it is or will be a party and the consummation by the Issuer and of the transactions contemplated herein and therein and in all documents relating to the Notes will not result in any breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is or will, as of the Closing Date, be a party or to which any of its properties or assets are or will be subject, except for such of the foregoing as to which relevant waivers, consents or amendments have been obtained and are in full force and effect or which would not reasonably be expected to have a material adverse effect on the financial position, stockholders’ or members’ equity or results of operations of the Issuer or on the performance by the Issuer of its obligations hereunder or under the other Transaction Documents to which it is or will, as of the Closing Date, be a party, nor will any such action result in a violation of the organizational documents of the Issuer or any applicable law.
(ix) Neither the Issuer nor the pool of Collateral Obligations is, or after giving effect to the transactions contemplated by the Transaction Documents will be, required to be registered as an "investment company" under the 1940 Act.
(x) Assuming the Initial Purchaser’s representations herein are true and accurate, it is not necessary in connection with the offer, sale and delivery of the Notes in the manner contemplated hereby do not require registration of by this Agreement and each Memorandum to register the Notes under the Securities Act, pursuant Act or to qualify the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified Indenture under the Trust Indenture Act of 1939, as amended.
2.5 (xi) The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act. As of the IssuerClosing Date, the Notes will not be (i) of the same class as securities listed on a national securities exchange in the United States that is registered under Section 6 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or (ii) quoted in any "automated inter-dealer quotation system" (as such term is used in the Exchange Act) in the United States.
2.6 Except (xii) [Reserved].
(xiii) After giving effect to the transfers on or prior to the Closing Date and any contemporaneous releases, the Issuer will own the Collateral Obligations conveyed to it on the Closing Date free and clear of all liens, encumbrances, adverse claims or security interests ("Liens") other than Liens permitted by the Transaction Documents.
(xiv) Upon the execution and delivery of the Transaction Documents, payment by the Initial Purchaser for the Purchased Notes and delivery to the Initial Purchaser of the Purchased Notes, the Initial Purchaser will acquire title to the Purchased Notes free of Liens except such Liens as provided may be created or granted by the Initial Purchaser and those permitted in Section 1.6(jthe Transaction Documents.
(xv) hereofNo consent, no consent authorization or action order of, or filing or registration with, any court or governmental agency is or public regulatory body will, as of the Closing Date, be required for the issuance and sale of the Notes or authoritythe execution, including delivery and performance by the SECIssuer of this Agreement or the other Transaction Documents to which it is a party, is except such consents, approvals, authorizations, filings, registrations or qualifications as have been obtained or as may be required to authorize, under the Securities Act or is otherwise required state securities or blue sky laws or the rules and regulations of the Financial Industry Regulatory Authority in connection with the executionsale and delivery of the Notes in the manner contemplated herein.
(xvi) The Collateral Obligations in all material respects will, delivery as of the Closing Date, have the characteristics described in the Final Memorandum.
(xvii) [Reserved].
(xviii) Each of the representations and warranties of the Issuer set forth in each of the other Transaction Documents to which it is a party is or performance will be true and correct in all material respects.
(xix) No adverse selection procedures were used in selecting the Collateral Obligations from among the loans that meet the criteria set forth in the Indenture and that are included in the Assets.
(xx) Neither the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")) of the Issuer nor anyone acting on their behalf has or will have, directly or indirectly (except to or through the Initial Purchaser), sold or offered, or attempted to offer or sell, or solicited any offers to buy, or otherwise approached or negotiated in respect of, this Agreementany of the Notes and neither the Issuer nor any of its affiliates will do any of the foregoing. As used herein, the Notes or terms "offer" and "sale" have the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws meanings specified in Section 2(3) of the various states Securities Act.
(xxi) Neither the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D) of the Issuer has or will have directly, or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of any security (as defined in the Securities Act) which is or will be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the offering contemplated by each Memorandum or engaged in any form of general solicitation or general advertising in connection with the offer and sale offering of the Notes.
2.7 Neither (xxii) With respect to any Notes subject to the provisions of Regulation S of the Securities Act, the Issuer has not offered or sold such Notes during the Distribution Compliance Period to a U.S. person or for the account or benefit of a U.S. person (other than the Initial Purchaser). For this purpose, the term "Distribution Compliance Period" and "U.S. person" are defined as such term is defined in Regulation S.
(xxiii) The Notes and the Transaction Documents will conform in all material respects to the descriptions thereof in the Second Preliminary Memorandum, except to the extent superseded by the Final Memorandum, and will conform in all material respects to the descriptions thereof in the Final Memorandum.
(xxiv) Any taxes, fees, and other governmental charges in connection with the execution and delivery of this Agreement and the Issuing other Transaction Documents and Paying Agency Agreementthe execution, nor the issuance delivery, and sale of the Notes in accordance have been or will be paid at or before the Closing Date.
(xxv) The Issuer has provided a written representation (the "17g-5 Representations") to each nationally recognized statistical rating organization hired to rate the Notes, which satisfies the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act, and a copy of which has been delivered to the Initial Purchaser. The Issuer has complied and shall comply, and has caused and shall cause each of its affiliates to comply, with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof 17g-5 Representations.
(xxvi) No proceeds received by the Issuer, Issuer in respect of the Notes will be used by the Issuer to acquire any security in any transaction which is subject to Section 13 or 14 of the Exchange Act.
(i) result in To the creation or imposition of any mortgageextent applicable thereto, lien, charge or encumbrance of any nature whatsoever upon any each of the properties or assets of the Issuer, or (ii) violate or result Issuer and its ERISA Affiliates is in a breach or a default under compliance in all material respects with ERISA unless any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument failure to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, so comply could not reasonably be expected to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) no lien under Section 303(k) of ERISA or Section 430(k) of the Code exists on any of the Assets. As used in the case of an issuance of Notesthis paragraph, the Notes being issued on term "ERISA Affiliate" means, with respect to any Person, a corporation, trade or business that is, along with such date have been duly and validly issued and constitute legalPerson, valid and binding obligations a member of a controlled group (as described in Section 414 of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles Code or Section 4001 of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawERISA), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contributions imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof, no ,] No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information contains will contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made 2 For use where the parties wish to fully rely on and as of such date, the safe harbor in Rule 506. See Addendum paragraph 2. 3 The phrase “or an entity controlled by an investment company” is not included in this representation. See the Bond Market Association Model Commercial Paper Dealer Agreement (iithe “BMA Model’”) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations Guidance Note to Section 2.11 for a description of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementlimited circumstances where this phrase should be included.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of the Issuer. The Issuer represents (a) It is understood and warrants that:agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the Mortgage Files to the Indenture Trustee and shall inure to the benefit of the Noteholders and the Insurer notwithstanding any restrictive or qualified endorsement or assignment. Upon discovery by any of the Depositor, the Servicer or the Indenture Trustee of a breach of any of such representations and warranties which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Noteholders and the Insurer, the party discovering such breach shall give prompt written notice to the other parties, and in no event later than two Business Days from the date of such discovery.
2.1 (b) The Issuer is a corporation duly organized, validly existing and in good standing as a Delaware Business Trust under the laws of the jurisdiction State of its incorporation and Delaware.
(c) The Issuer has all the requisite full power and authority to conduct its business as presently conducted by it and to execute, deliver and perform its obligations under perform, and to enter into and consummate, all transactions contemplated by this Agreement. The Issuer has duly authorized the Notesexecution, delivery and performance of this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been , has duly authorized, executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery hereof by the Issuer Depositor, the Servicer and constitute the Indenture Trustee, constitutes a legal, valid and binding obligations obligation of the Issuer Issuer, enforceable against the Issuer it in accordance with their its terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as the enforceability of the indemnification provisions of this Agreement thereof may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and insolvency, reorganization or similar laws affecting the enforcement of creditors’ ' rights generally, generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2(d) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement by the Issuer and the Issuing performance of and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof of this Agreement will not (a) violate the Certificate of Trust, Trust Agreement or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any other constituent documents of the properties Issuer or assets of any law, rule, regulation, order, judgment, award, administrative interpretation, injunction, writ, decree or the Issuer, like affecting the Issuer or by which the Issuer is bound or (iib) violate or result in a breach of or constitute a default under any of the terms of the Issuer’s charter documents indenture or by-laws, any contract or instrument other material agreement to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach in the case of either clause (a) or default might (b) will have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the Issuer's ability of the Issuer to perform its obligations under this Agreement.
(e) There are no actions or proceedings against, investigations known to it of, the Notes Issuer before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the Issuing consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and Paying Agency adversely affect the performance by the Issuer of its obligations under, or validity or enforceability of, this Agreement.
2.8 Except as disclosed in the Company Information(f) No consent, there is no litigation approval, authorization or order of any court or governmental proceeding pendingagency or body is required for the execution, delivery and performance by the Issuer of, or to compliance by the knowledge Issuer with, this Agreement or the consummation of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under transactions contemplated by this Agreement, the Notes except for such consents, approvals, authorizations or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940orders, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Informationif any, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer that have been obtained prior to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent AgreementClosing Date.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants Holdings represent and warrant to, and agree with, the Initial Purchasers that:
2.1 The Issuer is a corporation duly organized(a) A preliminary offering circular dated May 23, validly existing 2001 and in good standing under an offering circular dated the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions date of this Agreement relating to the Offered Securities to be purchased by the Initial Purchasers have been prepared by the Issuer. Such preliminary offering circular (the "Preliminary Offering Circular") and offering circular, as the same may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in supplemented prior to the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations closing of the Issuer enforceable against offering (the Issuer in accordance with their terms"Offering Circular"), subject are hereinafter collectively referred to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles the "Offering Document". On the date of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is Offering Document does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains include any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through CSFBC specifically for use therein, it being understood and agreed that the only such information is that described in Section 7(b) hereof.
2.11 (b) Each of the Issuer, Holdings and the Company has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Document, and each of the Issuer, Holdings and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a material adverse effect on the business, financial condition or results of operation of the Company and its subsidiaries, taken as a whole (aa "Material Adverse Effect").
(c) issuance Each subsidiary of Notes the Company has been duly incorporated and is an existing corporation, limited liability company or limited partnership, as the case may be, in good standing (if applicable) under the laws of the jurisdiction of its incorporation or organization, with corporate power and authority to own its properties and conduct its business as described in the Offering Document, and each subsidiary of the Company is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, in good standing (if applicable) in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock, ownership interests, or partnership interests, as the case may be, of each subsidiary of the Company has been, and immediately following the Merger will be, duly authorized and validly issued and, in the case of capital stock, is fully paid and nonassessable; and except as disclosed in the Offering Document and for pledges in favor of Credit Suisse First Boston, New York branch, as collateral agent under the Credit Agreement, the capital stock, ownership interests, or partnership interests, as the case may be, of the Company and each subsidiary owned by the Company, directly or through subsidiaries, will be owned free from liens, encumbrances and defects immediately following the Merger and the other Transactions.
(d) On the Closing Date, the Indenture will be duly authorized by the Issuer hereunder and (b) amendment or supplement Holdings, and the Supplemental Indenture will be duly authorized by the Company and the Subsidiary Guarantors upon consummation of the Private Placement Memorandum shall Merger; on the Closing Date, the Offered Securities will be deemed a representation and warranty duly authorized by the Issuer and Holdings, and the Subsidiary Guaranties will be duly authorized by the Subsidiary Guarantors upon consummation of the Merger; and when the Offered Securities are delivered and paid for pursuant to this Agreement and the Indenture on the Closing Date (as defined below), assuming due authorization, execution and delivery of the Indenture by the Trustee, the Indenture will have been duly executed and delivered by the Issuer and Holdings, such Offered Securities will have been duly executed, authenticated, issued and delivered by the Issuer and Holdings (assuming authentication by the Trustee in accordance with the provisions of the Indenture) and will conform in all material respects to the Dealerdescription thereof contained in the Offering Document and the Indenture and such Offered Securities will constitute valid and legally binding obligations of the Issuer and Holdings and, upon execution of the Supplemental Indenture, the Company and the Subsidiary Guarantors, enforceable in accordance with their terms and entitled to the benefits of the Indenture or the Supplemental Indenture, as the case may be (assuming that the Indenture and the Supplemental Indenture are valid and legally binding obligations of the date thereofTrustee), that, both before and after giving effect subject to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as effects of such date as if made on and as bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of such dategeneral applicability relating to or affecting creditors' rights, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement enforceability is sought considered in a proceeding at law or in equity or at law), equity) and (iii) an implied covenant of good faith and fair dealing.
(e) On the Closing Date, the Exchange Securities will have been duly authorized by the Issuer and Holdings, and upon consummation of the Merger, the Exchange Securities will be duly authorized by the Company and the Subsidiary Guarantors. When the Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities (assuming authentication by the Trustee in accordance with the provisions of the Indenture) will be entitled to the benefits of the Indenture and will be the valid and binding obligations of the Company, Holdings and the Subsidiary Guarantors, enforceable against the Company, Holdings and the Subsidiary Guarantors in accordance with their terms (assuming that the Indenture and the Supplemental Indenture are valid and legally binding obligations of the Trustee), subject to (i) the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability affecting creditors' rights and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).
(f) On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or the "Trust Indenture Act"), and the rules and regulations of the Securities and Exchange Commission (the "Commission") applicable to an indenture which is qualified thereunder.
(g) Except as disclosed in the case Offering Document, there are no contracts, agreements or understandings between the Issuer, Holdings or the Company and any person that would give rise to a valid claim against the Issuer, Holdings, the Company or any Initial Purchaser for a brokerage commission, finder's fee or other like payment in connection with the Offered Securities.
(h) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of an issuance of Notesthe transactions contemplated by this Agreement, since the Registration Rights Agreement dated the date hereof, between the Issuer, Holdings and the Initial Purchasers (the "Registration Rights Agreement"), or any other Transaction Document, in each case, in connection with the consummation of the most recent Private Placement Memorandumtransactions contemplated therein, there except as may be required under the Securities Act, the TIA and the rules and regulations of the Commission thereunder with respect to the Exchange Offer Registration Statement or the Shelf Registration Statement (each as defined in the Registration Rights Agreement) or the transactions contemplated by the Registration Rights Agreement, or any state or foreign securities laws or by the regulations of the National Association of Securities Dealers, Inc.
(i) Assuming the accuracy of the representations of the other parties thereto and the performance by those parties of their agreements therein, the execution, delivery and performance by each of the Issuer, Holdings, the Company and the subsidiaries of the Company (to the extent a party thereto) of each of the Transaction Documents and their compliance with the terms and provisions thereof and the consummation of the Transactions will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, that has been no jurisdiction over the Issuer, Holdings, the Company, or any of the Company's subsidiaries or any of their properties, (ii) the Transaction Documents or any agreement or instrument to which the Issuer, Holdings, the Company or any of the Company's subsidiaries is a party or by which the Issuer, Holdings, the Company or any of the Company's subsidiaries is bound or to which any of the properties of the Issuer, Holdings, the Company or the Company's subsidiaries is subject or (iii) the charter, by-laws or similar governing documents of the Issuer, Holdings, the Company or any of the Company's subsidiaries, except, with respect to clauses (i) and (ii), where such breach, violation or default would not have a Material Adverse Effect or would not have a material adverse change in effect on the business, financial condition (financial or otherwise) or operations results of operation of the Issuer which has not been disclosed to or Holdings or the Dealer in writing and (iv) Company or its subsidiaries, taken as a whole; the Issuer has full corporate power and authority to authorize, issue and sell the Notes as contemplated by this Agreement.
(j) None of the Issuer, Holdings, the Company or any of the subsidiaries of the Company is not in default breach or violation of any of the terms and provisions of, or in default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, that has jurisdiction over the Issuer, Holdings, the Company, or any of the Company's subsidiaries or any of their properties, (ii) any agreement or instrument to which the Issuer, Holdings, the Company or any of the Company's subsidiaries is a party or by which the Issuer, Holdings, the Company or any of the Company's subsidiaries is bound or to which any of the properties of the Issuer, Holdings, the Company or the Company's subsidiaries is subject or (iii) the charter, by-laws or similar governing document of the Issuer, Holdings, the Company or any of the Company's subsidiaries, except with respect to clauses (i) and (ii) for any breaches, violations or defaults that would not have a Material Adverse Effect or would not have a material adverse effect on the business, financial condition or results of operation of the Issuer or Holdings or the Company or its subsidiaries, taken as a whole.
(k) This Agreement has been duly authorized, executed and delivered by the Issuer and Holdings. Each of the other Operative Documents has been, or as of the Closing Date will have been, duly authorized, executed and delivered by the Issuer and Holdings (to the extent a party thereto), and immediately upon consummation of the Merger will be duly authorized, executed and delivered by each of Holdings, the Company and the Subsidiary Guarantors (to the extent a party thereto). All of the Transaction Agreements have been or will be as of or on the Merger closing date, duly authorized, executed and delivered by each of Holdings, the Company and the Company's subsidiaries (to the extent a party thereto). Each Transaction Document conforms or will conform in all material respects to the descriptions thereof contained in the Offering Document and each Operative Document (other than this Agreement) is or will constitute valid and legally binding obligations hereunderof the Issuer and Holdings (to the extent a party thereto) and each Transaction Agreement constitutes or will constitute valid and legally binding obligations of Holdings, the Company and each Subsidiary Guarantor (to the extent a party thereto), enforceable in accordance with its respective terms, except that any rights to indemnity and contribution may be limited by federal and state securities laws and public policy considerations and subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (iii) an implied covenant of good faith and fair dealing.
(l) Except as disclosed in the Offering Document, the Company and its subsidiaries have, or following consummation of the Merger will have, good and marketable title to all real properties and all other properties and assets owned by them that are material to the Company and its subsidiaries taken as a whole, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or proposed to be made thereof by them; and except as disclosed in the Offering Document, the Company and its subsidiaries hold any leased real or personal property that is material to the Company and its subsidiaries taken as a whole under valid and enforceable leases with no exceptions that would materially interfere with the Notes use made or proposed to be made thereof by them.
(m) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Issuer or Holdings, is imminent that would reasonably be expected to have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Offering Document, neither the Company nor any material respectof its subsidiaries is in violation of any statute, under rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the Issuing use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and Paying Agent Agreementneither the Issuer nor Holdings is aware of any pending investigation which might lead to such a claim.
(q) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Issuer, Holdings or the Company, any of the Company's subsidiaries or any of their respective properties tha
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants thatto the Dealer as follows:
2.1 (a) The Issuer is a corporation home-rule municipality, duly organized, organized and validly existing and in good standing under the laws of the jurisdiction State of its incorporation Texas, and has all the requisite full power and authority to execute, deliver and perform its obligations under issue the Notes, to enter into, perform and observe the covenants and agreements on its part contained in this Agreement and Agreement, the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement , the Note Ordinance and the Issuing Notes (collectively, the “Documents”) and Paying Agency Agreement to carry out and consummate all transactions contemplated by the Documents, and the Documents have been duly authorized, executed and delivered by the Issuer and Issuer. The Documents constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to the exercise of judicial discretion in accordance with general principles of equity and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in effect affecting creditors’ rights, to the extent constitutionally applicable.
(regardless of whether enforcement b) The Issuer has adopted the Note Ordinance at a meeting that was duly called and at which a quorum was present and acting throughout. The Note Ordinance is sought in a proceeding in equity full force and effect and has not been modified or at law) amended since its adoption. The Issuer has also duly authorized its Interim City Manager and except as enforceability of the indemnification provisions of Interim Chief Financial Officer to execute and deliver this Agreement may be limited by federal securities lawsand the other Documents.
2.3 (c) The Notes have been duly authorizedauthorized and executed by the Issuer, and when issued as provided in authenticated and delivered by the Issuing and Paying Agency Agreement, will be duly and validly issued and Agent will constitute legal, valid and binding obligations notes of the Issuer enforceable against the Issuer and will be in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generallyconformity with, and subject, as entitled to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofbenefit of, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 Note Ordinance. The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except be issued solely as provided Book-Entry Commercial Paper Notes, as defined in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement, except as may be required by and the securities or Blue Sky laws of Issuer will not issue certificated Commercial Paper Notes, without amending the various states in connection with offering memorandum for the offer and sale of Commercial Paper Notes (the “Offering Memorandum”) to provide material information relating to the certificated Commercial Paper Notes.
2.7 Neither (d) The information relating to the execution and delivery of this Agreement Notes and the Issuing and Paying Agency Agreement, nor Issuer contained in the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof Offering Memorandum prepared by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (ae) There are no consents, authorization or approvals of, or filings with, any Federal or state government authority (other than the Issuer) required in connection with the issuance of Notes or sale by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum Notes or the performance of its obligations thereunder except as may be required by state securities laws and those which have already been obtained or made.
(f) Adoption of the Note Ordinance and the execution, delivery and performance by the Issuer of this Agreement, the Notes, and the Documents have not and will not result in a breach or violation of, conflict with, or constitute a default under any law, regulation, order, judgment, agreement or instrument to which the Issuer is a party or by which the Issuer or any of its property is bound.
(g) There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Notes and the Documents, or any other agreement or instrument to which the Issuer is a party and which has been or will be executed in connection with the issuance of the Notes.
(h) Each delivery of Notes to the Dealer shall be deemed a representation and warranty by the Issuer to the DealerIssuer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, that (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly authorized, issued and delivered and, upon payment therefor, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally (ii) the representations and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations warranties of the Issuer which has not been disclosed to the Dealer set forth in writing paragraphs (a) through (g) of this Section 7 are true and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementcorrect as if made on such date.
Appears in 1 contract
Sources: Dealer Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants warrants, as of the date hereof and as of the Closing, that:
2.1 (a) The Issuer is a corporation duly organized, incorporated and is validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite Delaware, with full power and authority to execute, deliver and perform carry out its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement (b) The Shares have been duly authorizedauthorized and, when issued, delivered and paid for in the manner set forth in this Agreement, will be validly issued, fully paid and nonassessable.
(c) The execution and delivery of this Agreement has been duly authorized by all necessary action on the part of the Issuer and no further action is required by the Issuer, its Board of Directors or its stockholders in connection herewith. This Agreement has been duly executed and delivered by the Issuer and and, when delivered in accordance with the terms hereof, will constitute legal, the valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their terms subject to its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency insolvency, reorganization, moratorium and similar other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and subject, (iii) insofar as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) indemnification and except as enforceability of the indemnification contribution provisions of this Agreement may be limited by federal securities laws.applicable law.
2.3 (d) The Notes have been duly authorized, and when issued as provided in Issuer has filed a registration statement on Form S-3 (File No. 333-285870) (the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer “Registration Statement”) with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor SEC registering the issuance of the Notes in accordance with Shares to Ligand. The Registration Statement has become effective under the Issuing and Paying Agency AgreementSecurities Act and, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of to the Issuer’s charter documents or by-lawsknowledge, any contract or instrument no “stop order” is in effect with respect to which the Registration Statement. The Issuer is a party or by which it or its property is boundhas filed with the SEC, or any law or regulationwill file by the Closing, or any order, writ, injunction or decree of any court or government instrumentality, a prospectus supplement and accompanying “base” prospectus relating to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations offering of the Issuer or Shares to Ligand (the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement“Prospectus”).
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Sources: Subscription Agreement (Elutia Inc.)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contributions imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof, no hereof,]2 No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information contains will contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect 2 For use where the parties wish to such amendment fully rely on the safe harbor in Rule 506. See Addendum paragraph 2. 3 The phrase “or supplement, (i) the representations and warranties given an entity controlled by the Issuer set forth an investment company” is not included in this representation. See the Bond Market Association Model Commercial Paper Dealer Agreement (the “BMA Model”) Guidance Note to Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations 2.11 for a description of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementlimited circumstances where this phrase should be included.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 (a) The Issuer is a corporation duly organized, validly existing political subdivision of the State of California.
(b) The Issuer has complied with the Act and in good standing under the constitution and laws of the jurisdiction State that are prerequisites to the closing of its incorporation the transactions provided for in the Bond Documents.
(c) The issuance of the Bonds to provide funding for the Loan is intended to serve the public interest and has all will further the requisite power purposes of the Act including the provision of decent, safe and authority sanitary rental housing units for persons and families of low or moderate income; to executeaccomplish the foregoing, deliver the Issuer intends to issue the Bonds on the terms set forth in the Indenture and perform its obligations under to use the Notes, proceeds derived from the sale of the Bonds as specified in the Indenture and this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement (d) The Bonds have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be special limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws affecting creditors’ the rights of creditors generally and subject, as to enforceability, to general principles of equity equity.
(regardless e) The Issuer has the full legal right, power and authority to execute and deliver the Issuer Documents, and to carry out its obligations under each of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an those documents. The issuance of Notesthe Bonds and the execution, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations delivery and performance of the Issuer which Documents have been duly authorized by the Issuer. Each of the Issuer Documents has not been disclosed duly executed and delivered by the Issuer, and, upon execution and delivery by the other party or parties to the Dealer Issuer Documents, is a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in writing accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general principles of equity.
(ivf) To the best knowledge of the Issuer, neither the execution and delivery of, nor the fulfillment of or compliance with the terms or conditions of, the Issuer Documents violates the constitution or laws of the State or any judgment, order, writ, injunction or decree to which the Issuer is not in default of any of its obligations hereundersubject, under the Notes or, or conflicts in any material respectrespect with, under or results in a material breach of, or material default under, any agreement or instrument to which the Issuing Issuer is now a party or by which it is bound.
(g) Except as otherwise provided in the Indenture and Paying Agent Agreementthe Assignment, the Issuer has not created any debt, lien or charge upon the Trust Estate, and has not made any pledge or assignment of or created any encumbrance on the Trust Estate.
(h) The Issuer has complied with all material provisions of the Act applicable to the Bonds and the transactions provided for in the Issuer Documents.
(i) To the best knowledge of the Issuer, no litigation or administrative action of any nature is pending against the Issuer (i) seeking to restrain or enjoin the execution and delivery of the Issuer Documents, (ii) questioning the proceedings or authority relating to the Bonds or any other Issuer Document or
Appears in 1 contract
Sources: Financing Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contributions imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof, no hereof,]2 No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information contains will contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.and
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants thatto the Dealer as follows:
2.1 (a) The Issuer is a corporation home-rule municipality, duly organized, organized and validly existing and in good standing under the laws of the jurisdiction State of its incorporation Texas, and has all the requisite full power and authority to execute, deliver and perform its obligations under issue the Notes, to enter into, perform and observe the covenants and agreements on its part contained in this Agreement and Agreement, the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement , the Note Ordinance and the Issuing Notes (collectively, the “Documents”) and Paying Agency Agreement to carry out and consummate all transactions contemplated by the Documents, and the Documents have been duly authorized, executed and delivered by the Issuer and Issuer. The Documents constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to the exercise of judicial discretion in accordance with general principles of equity and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in effect affecting creditors’ rights, to the extent constitutionally applicable.
(regardless of whether enforcement b) The Issuer has adopted the Note Ordinance at a meeting that was duly called and at which a quorum was present and acting throughout. The Note Ordinance is sought in a proceeding in equity full force and effect and has not been modified or at law) amended since its adoption. The Issuer has also duly authorized its City Manager and except as enforceability of the indemnification provisions of Interim Chief Financial Officer to execute and deliver this Agreement may be limited by federal securities lawsand the other Documents.
2.3 (c) The Notes have been duly authorizedauthorized and executed by the Issuer, and when issued as provided in authenticated and delivered by the Issuing and Paying Agency Agreement, will be duly and validly issued and Agent will constitute legal, valid and binding obligations notes of the Issuer enforceable against the Issuer and will be in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generallyconformity with, and subject, as entitled to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofbenefit of, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 Note Ordinance. The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except be issued solely as provided Book-Entry Commercial Paper Notes, as defined in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement, except as may be required by and the securities or Blue Sky laws of Issuer will not issue certificated Commercial Paper Notes, without amending the various states in connection with offering memorandum for the offer and sale of Commercial Paper Notes (the “Offering Memorandum”) to provide material information relating to the certificated Commercial Paper Notes.
2.7 Neither (d) The information relating to the execution and delivery of this Agreement Notes and the Issuing and Paying Agency Agreement, nor Issuer contained in the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof Offering Memorandum prepared by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (ae) There are no consents, authorization or approvals of, or filings with, any Federal or state government authority (other than the Issuer) required in connection with the issuance of Notes or sale by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum Notes or the performance of its obligations thereunder except as may be required by state securities laws and those which have already been obtained or made.
(f) Adoption of the Note Ordinance and the execution, delivery and performance by the Issuer of this Agreement, the Notes, and the Documents have not and will not result in a breach or violation of, conflict with, or constitute a default under any law, regulation, order, judgment, agreement or instrument to which the Issuer is a party or by which the Issuer or any of its property is bound.
(g) There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Notes and the Documents, or any other agreement or instrument to which the Issuer is a party and which has been or will be executed in connection with the issuance of the Notes.
(h) Each delivery of Notes to the Dealer shall be deemed a representation and warranty by the Issuer to the DealerIssuer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, that (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly authorized, issued and delivered and, upon payment therefor, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally (ii) the representations and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations warranties of the Issuer which has not been disclosed to the Dealer set forth in writing paragraphs (a) through (g) of this Section 7 are true and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementcorrect as if made on such date.
Appears in 1 contract
Sources: Dealer Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation organization and has all the requisite power and authority to execute, execute and deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency AgreementAgent Agreement and to consummate the issuance and sale of, and the performance of its obligations under, the Notes contemplated thereby.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and legally binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms respective terms, subject to applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generallygenerally (including, without limitation, fraudulent conveyance laws), and subject, as to enforceability, to by general principles of equity (equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement is sought considered in a proceeding in equity or at law) and except as enforceability of law (collectively, the indemnification provisions of this Agreement may be limited by federal securities laws“Enforceability Exceptions”).
2.3 The Notes have been duly authorized, and when duly executed and issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and legally binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)the Enforceability Exceptions.
2.4 Assuming compliance by the Dealer with the procedures terms applicable to it set forth in Section 1 hereof1.6 of this Agreement, the offer offer, sale and sale initial resale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the terms applicable to it set forth in Section 1.6(j) hereof1.6 of this Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with with, the execution, delivery or performance of, by the Issuer of this Agreement, the Notes or Agreement and the Issuing and Paying Agency AgreementAgent Agreement or the consummation by the Issuer of the issuance and sale of, or the performance of its obligations under, the Notes contemplated thereby, except (i) for the filing by the Issuer of a current report on Form 8-K with the SEC if the Issuer reasonably determines such a filing is required, (ii) as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, or (iii) as have already been obtained.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject, (b) result in any violation of the provisions of the charter or bylaws or similar organizational documents of the Issuer, or (c) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority applicable to the Issuer or any of its subsidiaries, except, in the case of clauses (a) and (c) above, for any such conflict, breach, violation, default, lien, charge or encumbrance of any nature whatsoever upon any of that would not, individually or in the properties or assets of the Issueraggregate, or reasonably be expected to (iix) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (business, financial position, results of operations or otherwise) or operations prospects of the Issuer and its subsidiaries taken as a whole or (y) prevent or materially interfere with the ability of performance by the Issuer to perform of its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement (a “Material Adverse Effect”).
2.8 Except as disclosed in the Private Placement Memorandum or the Company Information, (a) there is are no litigation legal, governmental or governmental proceeding pendingregulatory investigations, actions, suits or proceedings pending to the knowledge of the Issuer threatened, against or affecting which the Issuer or any of its subsidiaries is a party or to which could any property of the Issuer or any of its subsidiaries is subject that, individually or in the aggregate, if determined adversely to the Issuer or any of its subsidiaries, would reasonably be expected to result in have a material adverse change in Material Adverse Effect, and (b) to the condition (financial knowledge of the Issuer, no such investigations, actions, suits or otherwise) proceedings are threatened or operations of contemplated by any governmental or regulatory authority or threatened by others that, if determined adversely to the Issuer or the ability any of the Issuer its subsidiaries, would reasonably be expected to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreementhave a Material Adverse Effect.
2.9 The Issuer is not an “investment company” or an entity “controlled” by required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with the Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or other person authorized to act on behalf of the Issuer or any of its subsidiaries has (a) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment or (d) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977 or the Bribery Act 2010 of the United Kingdom, each as may be amended, or the rules or regulations thereunder, and the Issuer and its subsidiaries have instituted and maintain policies and procedures designed to ensure compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 None of the Issuer, any of its subsidiaries or, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its subsidiaries (a) is, or is controlled by an individual or entity that is currently subject to any sanctions administered or enforced by the United States (including any administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (b) is operating, organized or resident in a country or territory that is, or whose government is, the subject of country-wide Sanctions that broadly prohibit dealings with that country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) or (c) will, directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity in any manner that would result in a violation of any Sanctions by, or would result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering of Notes, whether as Dealer, advisor, investor or otherwise).
2.14 (a)(i) To the Issuer’s knowledge, there has been no material security breach or incident, material unauthorized access or disclosure, or other material compromise of or relating to any of the Issuer’s and its subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third-party data maintained, processed or stored by the Issuer and its subsidiaries, and any such data processed or stored by third parties on behalf of the Issuer and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”) and (ii) the Issuer and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or incident, material unauthorized access or disclosure or other material compromise to their IT Systems and Data; (b) the Issuer and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification; and (c) the Issuer and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safe-guards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards.
2.15 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency Enforceability Exceptions and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants thatto the Dealer as of the date hereof, and as of the date of each issuance of Notes, as follows:
2.1 (a) The Issuer is a municipal corporation duly organized, created and validly existing and in good standing under the laws of the jurisdiction State of its incorporation Florida.
(b) The Resolution is in full force and effect and has all not been modified or amended since adoption, and accordingly the requisite Issuer has full power and authority to execute, deliver and perform its obligations under issue the Notes, this Agreement to enter into, perform and observe the Issuing covenants and Paying Agency Agreementagreements on its part contained in the Financing Documents and to carry out and consummate all transactions contemplated hereby and by the other Financing Documents.
2.2 This Agreement and the Issuing and Paying Agency Agreement (c) The Financing Documents have been duly authorized, executed and delivered by the Issuer and Issuer. The Financing Documents constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to the exercise of judicial discretion in accordance with general principles of equity (regardless of whether enforcement is sought and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities lawseffect affecting creditors’ rights.
2.3 (d) The Notes have been duly authorizedauthorized and executed by the Issuer and, when authenticated and when issued as provided in delivered by the Issuing and Paying Agency AgreementAgent, will be duly and validly issued and will constitute legal, valid and binding limited obligations of the Issuer enforceable against the Issuer in accordance with their terms, and the terms of the Resolution, the Reimbursement Agreement and the Agency Agreement, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to the exercise of judicial discretion in accordance with general principles of equity (regardless of whether enforcement is sought and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in a proceeding in equity or at law)effect affecting creditors’ rights.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer (e) The issuance and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act.
(f) The then-current Offering Memorandum (excluding the information therein with respect to DTC or any other securities depository, pursuant or information with respect to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes Dealer or the Issuing and Paying Agency Dealer Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (ag) There are no consents, authorizations, permits or approvals of, or filings with, any federal or state government authority (other than the Issuer) required in connection with the issuance of Notes or sale by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall Notes, the execution and delivery of the Financing Documents and the performance of its obligations thereunder except as may be deemed a required by state securities laws (as to which no representation is made) and warranty those which have already been obtained or made.
(h) The adoption of the Resolution and the execution, delivery and performance by the Issuer to the Dealer, as of the date thereofFinancing Documents do not and will not result in a breach or violation of, thatconflict with, both before and after giving effect or constitute a default under any constitutional provision, law, regulation, order, consent decree, judgment, agreement, indenture, deed of trust, mortgage or other instrument to such issuance and after giving effect to such amendment which the Issuer is a party or supplement, by which the Issuer or any of its property is bound.
(i) There is no action, suit proceeding, inquiry, litigation or governmental proceeding or investigation pending, or to the representations and warranties given by knowledge of the Issuer set forth in this Section 2 remain true threatened, against or affecting the Issuer or its property, and correct in all material respects on and as of such date as if made on and as of such date, (ii) in to the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations best knowledge of the Issuer, enforceable against the Issuer in accordance with their terms, subject undersigned there is no basis therefor:
(i) which might reasonably be expected to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought result in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer which has not been disclosed or in any way affect adversely the ability of the Issuer to perform its obligations under the Financing Documents;
(ii) contesting the validity or enforceability of the Financing Documents; or
(iii) contesting the existence or powers of the Issuer.
(j) At the time of each delivery of Notes to the Dealer Dealer, the Issuer shall be deemed to make a representation and warranty, as of the date thereof, that (i) the Notes issued on such date have been duly authorized, validly issued and delivered and, upon payment therefor, will constitute legal, valid and binding limited obligations of the Issuer enforceable in writing accordance with their terms, and the terms of the Resolution, the Reimbursement Agreement and the Agency Agreement, in accordance with general principles of equity and bankruptcy, insolvency, reorganization, moratorium or other similar laws heretofore or hereafter in effect affecting creditors’ rights, (ii) the representations and warranties of the Issuer set forth in this Section 8 are true and correct as if made as of such date and (iviii) the Issuer is not in default compliance with all other conditions precedent to the issuance of any of its obligations hereunderthe Notes, under including all tax covenants and requirements contained in the Notes or, in any material respect, under Resolution with respect to the Issuing and Paying Agent AgreementSeries A Obligations.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof, no ,] No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, hereunder or under the Notes or, in any material respect, under or the Issuing and Paying Agent Agency Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Dentsply International Inc /De/)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 2.1. The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 2.2. This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, in each case, subject to applicable bankruptcy, insolvency insolvency, reorganization and similar other laws affecting creditors’ of general applicability relating to creditors rights generally, and subjectand, as to enforceability, to general principles of equity equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of (the indemnification provisions of this Agreement may be limited by federal securities laws“Enforceability Exceptions”).
2.3 2.3. The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)the Enforceability Exceptions.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the 2.4. The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 2.5. The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no 2.6. No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the NotesNotes and except where the failure to obtain such consent or action or make such filing would not reasonably be expected to result in a material adverse change in the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.7 2.7. Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have (except with respect to the Issuer’s charter documents or by-laws) would reasonably be expected to result in a material adverse effect on the financial condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 2.8. Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in have a material adverse change in the condition (financial or otherwise) or condition, operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 2.9. The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 2.10. Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to Dealer Information.
2.11 Each (a) issuance of Notes by 2.11. Except as disclosed in the Company Information, neither the Issuer hereunder and (b) amendment or supplement nor any of its subsidiaries, nor, to the knowledge of the Private Placement Memorandum shall Issuer, any director, officer, employee, agent or representative of the Issuer or of any of its subsidiaries, has taken any action that would reasonably be deemed expected to result in a violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any equivalent applicable foreign rule or law in a manner that would be material to the Issuer, including, without limitation, making an offer, payment, promise to pay, or authorizing or approving the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Issuer and its subsidiaries have conducted their businesses in material compliance with applicable anti-corruption laws and have instituted and maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty by contained herein.
2.12. Except as disclosed in the Company Information, the operations of the Issuer and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Issuer and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the DealerAnti-Money Laundering Laws is pending or, as to the knowledge of the date thereofIssuer, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplementthreatened.
2.13. Except as disclosed in the Company Information, (i) the representations and warranties given by Neither the Issuer set forth in this Section 2 remain true and correct in all material respects on and as nor any of such date as if made on and as of such dateits subsidiaries, (ii) in nor, to the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations knowledge of the Issuer, enforceable against any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, or the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority applicable to the Issuer in accordance with their terms(collectively, subject to applicable bankruptcy“Sanctions”), insolvency and similar laws affecting creditors’ rights generally and subjectnor
(B) located, as to enforceability, to general principles of equity (regardless of whether enforcement is sought organized or resident in a proceeding in equity country or at lawterritory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, Libya, North Korea, Sudan and Syria), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofthis Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6(j) hereofthis Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries (other than that which could reasonably be expected to is disclosed in the Company Information) which might result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent (when acting as an agent with respect to the Issuer’s business) or employee of the Issuer or any of its subsidiaries (acting on behalf of the Issuer or any of its subsidiaries) (i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other similar payment in violation of the law applicable to the Issuer or such subsidiary, or (ii) is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a violation or a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and the Issuer and its subsidiaries have each conducted their businesses in compliance with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer and its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Except to the extent permissible under applicable laws, neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries (i) is currently the subject of any restrictive trade sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer or employee of the Issuer or any of its subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (which, as of the date of this Agreement, are Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its subsidiaries has engaged in any prohibited dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries except to the extent it may become permissible to do so under applicable laws.
2.16 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunderunder (a) the Notes, under the Notes or, or (b) in any material respect, under this Agreement or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Initial Purchasers that:
2.1 (a) The Issuer is a corporation duly organized, validly existing Preliminary Offering Memorandum and in good standing under Offering Memorandum with respect to the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement Series A Notes have been duly authorized, executed and delivered prepared by the Issuer for use, on the terms and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of set forth therein, by the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required Initial Purchasers in connection with the execution, delivery Exempt Resales. No order or performance of, this Agreement, decree preventing the Notes use of the Preliminary Offering Memorandum or the Issuing and Paying Agency Agreement, except as may be required by the securities Offering Memorandum or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of any amendment or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is boundsupplement thereto, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, order asserting that the transactions contemplated by this Agreement are subject to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations registration requirements of the Issuer Act has been issued and no proceeding for that purpose has commenced or the ability of the Issuer to perform its obligations under this Agreementis pending or, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatenedIssuer, against or affecting is contemplated.
(b) The Preliminary Offering Memorandum and the Issuer or any Offering Memorandum, as of its subsidiaries which could reasonably be expected to result in a material adverse change in their respective dates, and the condition (financial or otherwise) or operations Offering Memorandum as of the Issuer Closing Date, did not or the ability will not, as of the Issuer to perform its obligations under this AgreementClosing Date, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not contain an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements thereintherein not misleading, except that this representation and warranty does not apply to statements in light or omissions from the Preliminary Offering Memorandum or Offering Memorandum made in reliance upon and in conformity with information furnished to the Issuer in writing by or on behalf of the circumstances under which they were made, not misleadingInitial Purchasers expressly for use therein.
2.11 Each (ac) issuance of Notes The Indenture has been duly and validly authorized by the Issuer hereunder and, upon its execution, delivery and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty performance by the Issuer to and assuming due authorization, execution, delivery and performance by the DealerTrustee, as shall be a valid and binding agreement of the date thereofIssuer, thatenforceable against it in accordance with its terms, both before except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally and after giving effect to such issuance by general equitable principles (whether considered in a proceeding in equity or at law) and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct conforms in all material respects to the description thereof in the Offering Memorandum. No qualification of the Indenture under the TIA is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales.
(d) The Series A Notes have been duly authorized by the Issuer and, when executed by the Issuer and authenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, shall have been validly issued and delivered, and shall constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). The Series A Notes shall conform in all material respects to the description thereof in the Offering Memorandum.
(e) The Series B Notes have been duly authorized by the Issuer, and, when duly executed, authenticated, issued and delivered, shall constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).
(f) All the outstanding equity interests of the Issuer have been duly authorized and validly issued and are fully paid and nonassessable, and are not subject to any preemptive or similar rights.
(g) Each of the Issuer and the Subsidiaries (as defined) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization with full power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net worth or results of operations of the Issuer and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
(h) The Company does not have any subsidiaries or any ownership interests in any entities other than TRC Realty Co., ▇▇▇▇▇▇▇ Restaurants, Inc., ▇▇▇▇▇▇▇ Management Company, Inc., ▇▇▇▇▇▇▇ Family Restaurants, L.P. and Perkins Finance Corp. (the "Subsidiaries") and ▇.
▇. Joint Venture LLC.
(i) There are no legal or governmental proceedings pending or, to the knowledge of the Issuer, threatened, against the Issuer or any of the Subsidiaries or to which the Issuer or any of the Subsidiaries or any of their respective properties is subject, that are not disclosed in the Offering Memorandum and which might reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect or might materially affect the issuance of the Series A Notes or the consummation of the transactions contemplated by this Agreement. There are no agreements, contracts, indentures, leases or other instruments that are material to the Issuer and the Subsidiaries, taken as a whole, that are not described in the Offering Memorandum. Neither the Issuer nor any of the Subsidiaries is involved in any strike, job action or labor dispute with any group of employees, and, to each Issuer's knowledge, no such date action or dispute is threatened.
(j) Neither the Issuer nor any of the Subsidiaries is (i) in violation of its certificate or articles of incorporation, certificate of limited partnership, partnership agreement, by-laws or other organizational documents, as if made on and as applicable, or of any law, ordinance, administrative or governmental rule or regulation applicable to it or of any decree of any court or governmental agency or body having jurisdiction over it except where any such date, violation or violations in the aggregate would not reasonably be expected to have a Material Adverse Effect or (ii) in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which it is a party or by which it or any of its respective properties may be bound, except as may be disclosed in the Offering Memorandum.
(k) None of the issuance, offer, sale or delivery of the Series A Notes, the execution, delivery or performance of this Agreement, the Indenture or the Registration Rights Agreement by the Issuer or the consummation by the Issuer of the transactions contemplated hereby or thereby (including the Recapitalization) (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except as may be required in connection with the registration under the Act of the Series B Notes in accordance with the Registration Rights Agreement, qualification of the Indenture under the TIA and compliance with the securities or Blue Sky laws of various jurisdictions), or conflicts or shall conflict with or constitutes or shall constitute a breach of, or a default under, the certificate or articles of incorporation, certificate of limited partnership, bylaws, partnership agreement or other organizational documents, as applicable, of the Issuer or any of the Subsidiaries or (ii) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, any material agreement, indenture, lease or other instrument to which the Issuer or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, or (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of an issuance of Notesthe Registration Rights Agreement and the transactions contemplated thereby, the Notes being issued Act, the Exchange Act and the TIA) violates or will violate in any material respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Issuer or any of the Subsidiaries or any of their respective properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any of the Subsidiaries pursuant to the terms of any agreement or instrument to which either of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject.
(l) This Agreement has been duly authorized, executed and delivered by the Issuer.
(m) The financial statements (historical and pro forma), together with related schedules and notes forming part of the Offering Memorandum (and any amendment or supplement thereto), present fairly in all material respects the consolidated financial position, results of operations and changes in owners' equity and cash flows of such entities purported to be shown thereby on the basis stated in the Offering Memorandum at the respective dates or for the respective periods to which they apply; such date statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; the assumptions used in preparing the pro forma financial information and related notes and schedules included in the Offering Memorandum are reasonable; and the other financial and statistical information and data set forth in the Offering Memorandum (and any amendment or supplement thereto) is accurately presented and, to the extent such information and data is derived from the financial books and records of the entities covered thereby, is prepared on a basis consistent with such financial statements and the books and records of the entities covered thereby.
(n) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, who have certified or shall certify the financial statements included as part of the Offering Memorandum (or any amendment or supplement thereto), are independent public accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its interpretation and rulings. The historical financial statements, together with related schedules and notes, set forth in the Preliminary Offering Memorandum and the Offering Memorandum comply as to form in all material respects with the requirements applicable to registration statements on Form S-1 under the Act.
(o) The Registration Rights Agreement has been duly authorized by the Issuer and, on the Closing Date, will have been duly executed and validly issued delivered by the Issuer. When the Registration Rights Agreement has been duly executed and constitute legaldelivered, the Registration Rights Agreement will be a valid and binding obligations agreement of the Issuer, enforceable against the Issuer in accordance with their terms, its terms subject to applicable the effects of bankruptcy, insolvency insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ ' rights generally and subject, as to enforceability, to general equitable principles of equity (regardless of whether enforcement is sought considered in a proceeding in equity or at law) and except as rights to indemnity and contribution may be limited by Federal or state securities laws or principles of public policy. On the Closing Date, the Registration Rights Agreement will conform as to legal matters in all material respects to the description thereof in the Offering Memorandum.
(p) [Intentionally Omitted.]
(q) The Recapitalization has been duly authorized by the Company.
(r) Neither the Issuer nor any of its affiliates has taken, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Series A Notes.
(s) Except as disclosed in the Offering Memorandum (or any amendment or supplement thereto) (including, without limitation, in connection with the Recapitalization and the Registration Rights Agreement), (iii) subsequent to the date as of which such information is given in the case Offering Memorandum (or any amendment or supplement thereto), neither the Issuer nor any Subsidiary has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of an issuance of Notesbusiness, since that is material to the date Issuer and the Subsidiaries, taken as a whole, and there has not been any material change in the general or limited partners' interests or capital stock, or material increase in the short-term or long-term debt, of the most recent Private Placement Memorandum, there has been no Issuer or any Subsidiary or any material adverse change change, or any development involving or which could reasonably be expected to involve a prospective material adverse change, in the condition (financial or otherwise) other), business, properties, net worth or results of operations of the Issuer which has not been disclosed to and the Dealer in writing and Subsidiaries, taken as a whole.
(ivt) Each of the Issuer and the Subsidiaries has good and marketable title to all property (real and personal) described in the Offering Memorandum as being owned by it, free and clear of all liens, claims, security interests or other encumbrances except such as are described in the Offering Memorandum and all the property described in the Offering Memorandum as being held under lease by each of the Issuer and the Subsidiaries is held by it under valid, subsisting and enforceable leases, with only such exceptions as in the aggregate are not in default of any of its obligations hereunder, under the Notes or, materially burdensome and do not interfere in any material respectrespect with the conduct of the business of the Issuer and the Subsidiaries, taken as a whole. Each of the Issuer and the Subsidiaries enjoys peaceful and undisturbed possession under all leases to which it is a party as lessee, except for such leases that, in the Issuing aggregate, are not material to the business of the Issuer and Paying Agent Agreementthe Subsidiaries taken as a whole. No consent need be obtained from any person with respect to any such lease or agreement in connection with the transactions contemplated hereby and in the Offering Memorandum, including the Recapitalization, which consent has not already been obtained. Except for such assets, plants and facilities as are not material in the aggregate to the business of the Issuer and the Subsidiaries taken as a whole, all tangible assets, plants and facilities of each of the Issuer and the Subsidiaries are in good condition and repair (ordinary wear and tear excepted) and are adequate, in the reasonable opinion of the Issuer, for the uses to which they are being put or would be put in the ordinary course of business.
(u) Except as permitted by the Act, the Issuer has not distributed and, prior to the later to occur of the Closing Date and completion of the distribution of the Series A Notes, shall not distribute any offering material in connection with the offering and sale of the Series A Notes other than the Preliminary Offering Memorandum and Offering Memorandum.
(v) Each of the Issuer and the Subsidiaries has such permits, licenses, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities ("Permits") as are necessary under applicable law to own its properties and to conduct its businesses in the manner described in the Offering Memorandum, except to the extent that the failure to have such Permits would not reasonably be expected to have a Material Adverse Effect. Each of the Issuer and the Subsidiaries has fulfilled and performed in all material respects all its material obligations with respect to the Permits, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit, subject in each case to such qualification as may be set forth in the Offer
Appears in 1 contract
Sources: Purchase Agreement (Restaurant Co)
Representations and Warranties of the Issuer. The Issuer hereby warrants and represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.Agent, and, each request to issue Commercial Paper Notes shall constitute the Issuer's continuing warranty and representation, as follows:
2.2 (a) This Agreement is, and all Commercial Paper Notes delivered to the Issuing and Paying Agency Agent pursuant to this Agreement have been will be, duly authorized, executed and delivered by the Issuer. The Issuing and Paying Agent’s appointment to act for the Issuer hereunder is duly authorized by the Issuer.
(b) This Agreement constitutes, and constitute the Commercial Paper Notes, when completed, countersigned, and delivered pursuant hereto, will constitute, the Issuer's legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable except as such enforceability may be limited by bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws affecting creditors’ the rights generally, of creditors generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
2.4 Assuming compliance by (c) The Issuer is duly organized and validly existing under the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale laws of the Notes in State of Texas and no liquidation, dissolution, bankruptcy, windup or similar proceedings have been instituted with respect to the manner contemplated hereby Issuer.
(d) The Issuer has, and at all relevant times has had, all necessary power and authority to execute, deliver and perform this Agreement and to issue the Commercial Paper Notes.
(e) All actions on the part of the Issuer which are required for the authorization of the issuance of the Commercial Paper Notes, and for the authorization, execution, delivery and performance of this Agreement, do not require registration the approval or consent of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect any holder or trustee of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated any indebtedness or obligations of the Issuer.
2.6 Except as provided in Section 1.6(j(f) hereofThe issuance of Commercial Paper Notes by the Issuer (i) does not and will not contravene any provision of any governmental law, no consent regulation or action ofrule applicable to the Issuer, or filing or registration and (ii) does not and will not conflict with, breach or contravene the provisions of any governmental contract or public regulatory body or authority, including other instrument binding upon the SEC, is required Issuer.
(g) Each instruction given to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes Agent in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions Section 4 hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed constitute a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, that (i) the representations issuance and warranties given delivery of such Commercial Paper Note(s) have been duly and validly authorized by the Issuer, (ii) the Credit Agreement is in full force and effect, (iii) the Issuing and Paying Agent’s appointment to act for the Issuer set forth in this Section 2 remain hereunder has been duly authorized by all necessary corporate action, (iv) after the issuance of such Commercial Paper Notes and the application of the proceeds thereof, the aggregate principal amount of and interest payable upon maturity of the related Commercial Paper Notes will not exceed the principal component of the Credit Agreement, (v) no default or event of default has occurred or is continuing thereunder and each representation and warranty of the Issuer thereunder is true and correct in all material respects on and as of such date as if made on and as of such date, and (iivi) in no Non-Issuance Notice has been received from the case of an Liquidity Provider.
(h) The issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations delivery of the Issuer, enforceable against Commercial Paper Notes will not violate any Texas or federal law and the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subjectCommercial Paper Notes do not require registration under the Securities Act of 1933, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementamended.
Appears in 1 contract
Sources: Issuing and Paying Agent Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, formed and validly existing and in good standing under the laws of the jurisdiction of its incorporation formation and has all the requisite limited partnership power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorizedauthorized by the Issuer, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming the offer and sale of the Notes in Section 1.6(j) hereofthe manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, be obtained or is otherwise required in connection with made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any consensual mortgage, lien, charge lien or similar encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under under, as the case may be, any of the terms of the Issuer’s charter documents certificate of limited partnership or by-lawsagreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any statutory law or regulationregulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default might could reasonably be expected to have a material adverse effect on the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that the Issuer makes no representation or warranty as to Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth above in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementwriting.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby warrants and represents and warrants that:
2.1 The Issuer is a corporation duly organizedto you, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement Administrative Agent and the Issuing Bank, and, each request to issue Commercial Paper Notes shall constitute the Issuer's warranty and Paying Agency Agreement.representation, as follows:
2.2 (a) This Depositary Agreement is, and the Issuing and Paying Agency all Commercial Paper Notes delivered to you as Depositary pursuant to this Depositary Agreement have been will be, duly authorized, executed and delivered by the Issuer Issuer.
(b) The issuance and constitute delivery of the Commercial Paper Notes will not violate any United States state or Federal law or Mexican law, and the Commercial Paper Notes are exempt from registration under the United States Securities Act of 1933, as amended.
(c) This Depositary Agreement constitutes and the Commercial Paper Notes, when issued pursuant to the DTC Documents, will constitute, the Issuer's legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable except as such enforceability may be limited by corporate debt restructuring (concurso mercantil) procedures, bankruptcy, insolvency and insolvency, reorganization, liquidation, moratorium or other similar laws affecting the creditors’ ' rights generally, of creditors generally and subject, as to enforceability, to by general principles of equity (regardless of whether enforcement is sought considered in a proceeding in equity or at law).
2.4 Assuming compliance by (d) The Issuer is a sociedad anonima de capital variable duly organized and validly existing under the Dealer laws of Mexico, and no liquidation, dissolution, corporate debt restructuring (concurso mercantil) procedures, bankruptcy, winding-up or similar proceedings have been instituted with respect to the procedures applicable Issuer.
(e) The Issuer has, and at all relevant times during the term of this Depositary Agreement will have, all necessary corporate power and authority (i) to it set forth execute, deliver and perform this Depositary Agreement, (ii) to issue the Commercial Paper Notes and (iii) to receive credit as contemplated in Section 1 hereof, the offer and sale Reimbursement Agreement.
(f) All action on the part of the Notes Issuer which is required (i) for the authorization of the issuance of the Commercial Paper Notes, (ii) for the authorization, execution, delivery and performance of this Depositary Agreement and (iii) to receive credit as contemplated in the manner contemplated hereby Reimbursement Agreement has been taken and such issuance, authorization, execution, delivery and performance do not require registration the approval or consent of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect any holder or trustee of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated any indebtedness or obligations of the Issuer.
2.6 Except as provided in Section 1.6(j(g) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the The execution, delivery or and performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Reimbursement Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Commercial Paper Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency the Reimbursement Agreement and similar laws affecting creditors’ rights generally this Depositary Agreement (i) do not and subject, as to enforceability, to general principles will not contravene any provision of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date any provision of the most recent Private Placement Memorandum, there has been no material adverse change in the condition estatutos sociales (financial or otherwiseany equivalent organizational documents) or operations of the Issuer which has not been disclosed effective as of the date hereof or any Requirement of Law applicable to the Dealer in writing Issuer and (ivii) do not and will not conflict with, breach or contravene the Issuer is not in default provisions of any of its obligations hereunder, under Contractual Obligation binding upon the Notes or, in any material respect, under the Issuing and Paying Agent AgreementIssuer.
Appears in 1 contract
Sources: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with, the several Purchasers that:
2.1 The Issuer is a corporation duly organized(a) A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Purchasers have been prepared by the Issuer. Such preliminary offering circular and offering circular, validly existing and in good standing under the laws as both are supplemented as of the jurisdiction date of its incorporation and has all the requisite power and authority to executethis Agreement, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered together with any other document approved by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required for use in connection with the execution, delivery or performance of, this Agreementcontemplated resale of the Offered Securities are hereinafter collectively referred to as the "Offering Document." On the date thereof, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is Offering Document does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains include any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by . The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Issuer hereunder by any Purchaser through Credit Suisse First Boston Europe (Limited) ("CSFBEL") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b). Winstar's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission (bthe "Commission") amendment and all subsequent reports (collectively, the "Exchange Act Reports") which have been filed by Winstar with the Commission or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer sent to stockholders pursuant to the DealerSecurities Exchange Act of 1934 (the "Exchange Act"), as of when they were filed with the date thereofCommission, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect"). The Issuer is qualified to do business as a foreign corporation in the State of New York.
(c) Each Significant Subsidiary (as defined in Regulation S-X under the Exchange Act) of the Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its owner ship or lease of property or the conduct of its business requires such date qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Issuer has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Issuer, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(d) Each of the Indenture, the Dollar Notes Indentures and the Registration Rights Agreement (as if made defined below) has been duly authorized; the Offered Securities and the Dollar Notes have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) and as of the Dollar Notes are delivered in exchange for existing Senior Subordinated Notes in the Exchange Offer or in exchange for Exchange Debentures, the Indenture, the Dollar Notes Indentures and the Registration Rights Agreement will have been duly executed and delivered, such dateOffered Securities and Dollar Notes will have been duly executed, authenticated, issued and delivered and will conform, in all material respects, to the descriptions thereof contained in the Offering Document and the Indenture (ii) in the case of an issuance the Offered Securities) and the offering circular (the "Dollar Notes Offering Circular") in respect of the concurrent private placement of 2010 Senior Notes and Senior Discount Notes (in the case of the Dollar Notes), the Registration Rights Agreement and such Offered Securities and Dollar Notes being issued on such date have been duly and validly issued and will constitute legal, valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equity principles; and, with respect to the Registration Rights Agreement, except that rights to indemnity and contribution may be limited by federal and state securities laws and public policy considerations.
(e) Except as contemplated by this Agreement or as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Issuer and any person that would give rise to a valid claim against the Issuer or any Purchaser for a brokerage commission, finder's fee or other like payment in connection with the transactions contemplated by this Agreement.
(f) No consent, approval, authorization, or order of, or filing with, any govern mental agency or body or any court is required for the consummation of the Tender Offer, the Exchange Offer, the Preferred Stock Transaction or the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Issuer, other than as may be required under the Securities Act and the Rules and Regulations of the Commission thereunder with respect to the Registration Rights Agreement among the Issuer and the Purchasers to be dated as of the Closing Date (the "Registration Rights Agreement") and the transactions contemplated there under, and such as may be required by securities or blue sky laws of any state of the United States or of any foreign jurisdiction in connection with the offer and sale of the Offered Securities.
(g) The execution, delivery and performance of the Indenture, the Dollar Notes Indentures, the Registration Rights Agreement and this Agreement, the consummation of the Tender Offer, the Exchange Offer, and the Preferred Stock Transaction, and the issuance and sale of the Offered Securities and the Dollar Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Issuer or any subsidiary of the Issuer or any of their properties, (ii) any agreement or instrument to which the Issuer or any such subsidiary is a party or by which the Issuer or any such subsidiary is bound or to which any of the properties of the Issuer or any such subsidiary is subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) the charter or by-laws of the Issuer or any such subsidiary, except, in the case of an issuance clause (i) or (ii), such breaches, violations or defaults that individually or in the aggregate would not have a Material Adverse Effect; and the Issuer has full corporate power and authority to consummate the Refinancing, including, without limitation, to authorize, issue and sell the Offered Securities to be sold by the Issuer as contemplated by this Agreement and the Dollar Notes as contemplated by the Exchange Offer Circular.
(h) This Agreement has been duly authorized, executed and delivered by the Issuer.
(i) Except as disclosed in the Offering Document, and except for liens granted under the Issuer's accounts receivables securitization facility, the Issuer and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and, except as disclosed in the Offering Document, the Issuer and its subsidiaries hold any leased real or personal property under valid and enforce able leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
(j) The Issuer and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of Notesproceedings relating to the revocation or modification of any such certificate, authority or permit that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(k) No labor dispute with the employees of the Issuer or any of its subsidiaries exists or, to the knowledge of the Issuer, is imminent that could reasonably be expected to have a Material Adverse Effect.
(l) The Issuer and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business as now operated by them, or used in the conduct of the business as now operated by them, except to the extent that the failure to own or possess or the inability to acquire such intellectual property rights would not individually or in the aggregate have a Material Adverse Effect; and the Issuer has not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Issuer or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, neither the Issuer nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Issuer is not aware of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Issuer, any of its subsidiaries or any of their respective properties that, individually or in the aggregate, could reason ably be expected to have a Material Adverse Effect, or to materially and adversely affect the ability of the Issuer to perform its obligations under any of the Indentures, the Registration Rights Agreement or this Agreement, to consummate the Tender Offer, the Exchange Offer or the Preferred Stock Transaction or which are otherwise material in the context of the sale of the Offered Securities; and, to the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated.
(o) The financial statements included in the Offering Document present fairly the financial position of the Issuer and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements, have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; and the assumptions used in preparing the pro forma financial statements included in the Offering Document provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts.
(p) Except as disclosed in the Offering Document, since the date of the most recent Private Placement Memorandumlatest audited financial statements included in the Offering Document, there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise) other), business, properties or results of operations of the Issuer which and its subsidiaries taken as a whole (it being understood that a change in the price of the Issuer's common stock or the continuation of operating losses consistent with the Issuer's historical results shall be deemed not to be, in and of themselves, such a material adverse change), and, except as disclosed in or contemplated by the Offering Document, there has been no dividend or distribution of any kind declared, paid or made by the Issuer on any class of its capital stock.
(q) The Issuer is not been disclosed an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Dealer in writing United States Investment Company Act of 1940 (the "Investment Company Act"), nor is it a closed-end investment company required to be registered, but not registered, thereunder; and (iv) the Issuer is not and, after giving effect to the offering and sale of the Offered Securities, the application of the proceeds thereof as described in default the Offering Document and the consummation of the Tender Offer, the Exchange Offer and the Preferred Stock Transaction, will not be an "investment company" as defined in the Investment Company Act.
(r) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. auto mated inter-dealer quotation system.
(s) Assuming the accuracy of the representations and warranties of the Purchasers contained herein, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act; and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), other than in connection with the Issuer's obligations under the Registration Rights Agreement.
(t) Neither the Issuer nor any of its obligations hereunderaffiliates, nor any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Notes or, Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any material respect, form of general solicitation or general advertising within the meaning of Rule 502(c) under the Issuing Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(b) of Regulation S. The Issuer, its affiliates and Paying Agent any person acting on their behalf have complied and will comply with the offering restrictions requirement of Regulation S. The Issuer has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement and the Registration Rights Agreement.
(u) The I
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, execute and deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency AgreementAgent Agreement and to consummate the issuance and sale of, and the performance of its obligations under, the Notes contemplated thereby.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws relating to or affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures terms applicable to it set forth in Section 1 hereof1.6 of this Agreement, the offer offer, sale and sale initial resale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the IssuerIssuer except indebtedness owing to creditors whose claims are mandatorily preferred by laws of general application.
2.6 Except as provided Assuming compliance by the Dealer with the terms applicable to it set forth in Section 1.6(j) hereof1.6 of this Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including authority having jurisdiction over the SEC, Issuer is required to authorize, or is otherwise required in connection with with, the execution, delivery or performance of, by the Issuer of this Agreement, the Notes or Agreement and the Issuing and Paying Agency AgreementAgent Agreement or the consummation by the Issuer of the issuance and sale of, or the performance of its obligations under, the Notes contemplated thereby, except (i) for the filing by the Issuer of a current report on Form 8-K with the SEC if the Issuer reasonably determines such a filing is required, (ii) as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, or (iii) as have already been obtained.
2.7 Neither the execution and execution, delivery or performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, Agent Agreement nor the issuance consummation by the Issuer of the issuance and sale of, or the performance of its obligations under, the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, contemplated thereby will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under (A) any of the terms of the organizational documents of the Issuer’s charter documents or by-laws, (B) any contract or instrument to which the Issuer is a party or by which it or its property is bound, bound or (C) any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, instrumentality to which the Issuer is subject or by which it or its property is bound, which violation, breach or default might with respect to clauses (B) or (C) would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (condition, financial or otherwise) , or on the business or results of operations of the Issuer and its subsidiaries taken as a whole or on the ability of the Issuer to perform any of its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement or any Notes (a “Material Adverse Effect”).
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer Issuer, threatened, against or affecting the Issuer or any of its subsidiaries (other than that which is disclosed in the Company Information) which could reasonably be expected to result in have a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementMaterial Adverse Effect.
2.9 The Issuer is not required to be registered as an “investment company,” or an entity “controlled” by an “investment company” within the meaning of as such term is defined in the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information (in each case, other than the Dealer Information) contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, employee, agent, affiliate or other person acting on behalf of the Issuer or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or Anti-Corruption Laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Issuer and its subsidiaries have instituted, and maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and Anti-Corruption Laws.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Issuer or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries, nor, to the knowledge of the Issuer, any director, officer, employee, agent, affiliate or other person acting on behalf of the Issuer or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer, any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of comprehensive Sanctions, including, without limitation, the Crimea, non-government controlled areas of Kherson and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Issuer will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person or entity that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country (iii) in any other manner that will result in a violation by any person (including any person participating in the offering of Notes, whether as underwriter, advisor, investor or otherwise) of applicable Sanctions. For the past 5 years, the Issuer and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any prohibited dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
2.14 To the knowledge of the Issuer, (A) there has been no security breach or incident, unauthorized access or disclosure, or other compromise of the Issuer or its subsidiaries’ information technology and computer systems, networks, hardware, software, websites, applications, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Issuer and its subsidiaries, and any such data processed or stored by third parties on behalf of the Issuer and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”) other than those that were resolved without material cost or liability; (B) there has been no event or condition that reasonably could result in, any security breach or incident, unauthorized access or disclosure or other compromise to its or its subsidiaries’ IT Systems and Data; and (C) the Issuer and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards designed to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards, except with respect to clauses (A) and (B), for any such security breach or incident, unauthorized access or disclosure, or other compromises, as would not, individually or in the aggregate, have a Material Adverse Effect, or with respect to clause (C), where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect. The Issuer and its subsidiaries are presently in material compliance with all currently applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
2.15 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement which has not been disclosed to the Dealer in writing prior to the date of such issuance in accordance with Section 3.2 and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under (A) this Agreement or the Issuing and Paying Agent AgreementAgreement or (B) any Notes, which, in the case of a default under clause (A) of this subsection (iv), could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, formed and validly existing and in good standing under the laws of the jurisdiction of its incorporation formation and has all the requisite limited partnership power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorizedauthorized by the Issuer, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming the offer and sale of the Notes in Section 1.6(j) hereofthe manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, be obtained or is otherwise required in connection with made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payments and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any mortgage, lien, charge or similar encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under under, as the case may be, any of the terms of the Issuer’s charter documents certificate of limited partnership or by-lawsagreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any statutory law or regulationregulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default might could reasonably be expected to have a material adverse effect on the financial condition (financial or otherwise) or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided that the Issuer makes no representation or warranty as to Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth above in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its consolidated subsidiaries taken as a whole which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementwriting.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer represents and warrants thatto the Initial Purchasers, as of the date hereof (unless otherwise specified), as follows:
2.1 (a) The Preliminary Offering Circular and the Other Materials were as of their respective dates, at the Time of Sale and as of the Closing Date, and the Final Offering Circular is as of the date thereof and as of the Closing Date, accurate in all material respects, and the Preliminary Offering Circular and the Other Materials did not as of their respective dates, at the Time of Sale and as of the Closing Date, and the Final Offering Circular does not as of the date thereof and as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading (it being understood that no representation or warranty is made with respect to the omission of information in the Preliminary Offering Circular regarding the final amount of the Offered Notes (as reflected in the Final Offering Circular) or pricing and price-dependent information, which information shall of necessity appear only in the Final Offering Circular). Notwithstanding the foregoing, this representation and warranty does not apply to any statements or omissions made in reliance upon and in conformity with the Initial Purchasers Information.
(b) The representations and warranties of the Issuer in the Indenture are true and correct in all material respects.
(c) The Issuer is a corporation duly organized, formed and validly existing and as a statutory trust in good standing under the laws of the jurisdiction State of its incorporation and has all the requisite Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Offering Circular and the Final Offering Circular and to execute, deliver and perform its obligations under the Indenture, to authorize the issuance of the Notes, this Agreement and to consummate the Issuing and Paying Agency Agreementtransactions contemplated by the Indenture.
2.2 This Agreement and the Issuing and Paying Agency Agreement (d) The Notes have been duly authorized, and, when executed, issued and delivered pursuant to the Indenture, duly authenticated by the Indenture Trustee and paid for by the Initial Purchasers in accordance with this Agreement, will be duly and validly executed, authenticated, issued and delivered and entitled to the benefits provided by the Indenture; the Indenture has been duly authorized by the Issuer and, when executed and delivered by the Issuer and the Indenture Trustee, will constitute legal, a valid and binding obligations agreement of the Issuer Issuer, enforceable against the Issuer in accordance with their terms its terms, except to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency and insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generallyin general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought equity; and the Series 2007-1 Notes and the Indenture conform to the descriptions thereof in a proceeding the Preliminary Offering Circular and the Final Offering Circular in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities lawsall material respects.
2.3 The Notes have been duly authorized(e) All approvals, and when issued as provided in the Issuing and Paying Agency Agreementauthorizations, will be duly and validly issued and will constitute legalconsents, valid and binding obligations orders or other actions of the Issuer enforceable against the Issuer in accordance any person, corporation or other organization, or of any court, governmental agency or body or official (except with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant respect to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the state securities or Blue Sky laws of the various states jurisdictions), required in connection with the offer valid and proper authorization, issuance and sale of the NotesNotes by the Issuer have been taken or obtained.
2.7 Neither (f) The Issuer is not in violation of its organizational documents or in default in its respective performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which would have a material adverse effect on the execution transactions contemplated in this Agreement or in the Indenture. The execution, delivery and performance of the Indenture, and the issuance and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or not result in a material breach or a default under violation of any of the terms of the Issuer’s charter documents and provisions of, or by-lawsconstitute a material default under, any contract statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Issuer or any of its properties or any agreement or instrument to which the Issuer is a party or by which it the Issuer is bound or its property to which any of the properties of the Issuer is boundsubject, or any law the organizational documents of the Issuer; and the Issuer has full power and authority to authorize and issue the Notes as contemplated by this Agreement and the Indenture and to enter into the Indenture.
(g) Other than as set forth or regulationcontemplated in the Preliminary Offering Circular, there are no legal or any ordergovernmental proceedings pending or, writto the knowledge of the Issuer, injunction or decree of any court or government instrumentality, threatened to which the Issuer is a party or to which any property of the Issuer is the subject which, if determined adversely to the Issuer, could individually or by which it or its property is bound, which breach or default might in the aggregate reasonably be expected to (i) have a material adverse effect on the condition (financial or otherwise) or operations interests of the Issuer holders of the Notes, or (ii) impair materially the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementIndenture.
2.8 Except as disclosed (h) Any taxes, fees and other governmental charges in connection with the Company Informationexecution, there is no litigation delivery and performance by the Issuer of the Indenture shall have been paid or governmental proceeding pending, will be paid by or to the knowledge on behalf of the Issuer threatenedat or prior to the Closing Date to the extent then due.
(i) When the Series 2007-1 Notes are issued pursuant to the Indenture, against the Offered Notes will be eligible for resale pursuant to Rule 144A and will not be of the same class (within the meaning of Rule 144A under the Act) as securities that are listed on a national securities exchange registered under Section 6 of the Exchange Act, or affecting quoted in a U.S. automated inter-dealer quotation system.
(j) Neither the Issuer nor any person acting on its behalf has offered or sold any Series 2007-1 Notes by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Act. Neither the Issuer nor any of its subsidiaries which could reasonably be expected to result affiliates (directly or indirectly) has offered or sold or will offer or sell any Series 2007-1 Notes or similar security in a material adverse change in manner that would render the condition (financial or otherwise) or operations issuance and sale of the Issuer or the ability Series 2007-1 Notes a violation of Section 5 of the Issuer Act, or require registration pursuant thereto, nor will it authorize any person to perform its obligations under this Agreementact in such manner.
(k) When the Series 2007-1 Notes are issued pursuant to the Indenture, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is will not be required to be registered as an “investment company” or an entity “controlled” by an “investment company” within the meaning of as such term is defined in the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contributions imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby and in the Issuing and Paying Agency Agreement do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s 's charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to that might result in a material adverse change in the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ ' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, hereunder or under the Notes or, in any material respect, under or the Issuing and Paying Agent Agency Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with, the several Purchasers that:
2.1 The Issuer is a corporation duly organized(a) A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Purchasers have been prepared by the Issuer. Such preliminary offering circular and offering circular, validly existing and in good standing under the laws as both are supplemented as of the jurisdiction date of its incorporation and has all the requisite power and authority to executethis Agreement, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered together with any other document approved by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required for use in connection with the execution, delivery or performance of, this Agreementcontemplated resale of the Offered Securities are hereinafter collectively referred to as the "Offering Document." On the date thereof, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is Offering Document does not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains include any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by . The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Issuer hereunder by any Purchaser through Credit Suisse First Boston Corporation ("CSFBC") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b). Winstar's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission (bthe "Commission") amendment and all subsequent reports (collectively, the "Exchange Act Reports") which have been filed by Winstar with the Commission or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer sent to stockholders pursuant to the DealerSecurities Exchange Act of 1934 (the "Exchange Act"), as of when they were filed with the date thereofCommission, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct conformed in all material respects on to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as of such date as if made on and as of such date, (ii) described in the case Offering Document; and the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of an issuance property or the conduct of Notesits business requires such qualification, except to the Notes being issued extent that the failure to be so qualified or be in good standing would not have a material adverse effect on such date have the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect"). The Issuer is qualified to do business as a foreign corporation in the State of New York.
(c) Each Significant Subsidiary (as defined in Regulation S-X under the Exchange Act) of the Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its owner ship or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Issuer has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Issuer, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(d) Each of the Indentures and the Registration Rights Agreement (as defined below) has been duly authorized; the Offered Securities and the Additional Notes have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) and the Additional Notes are delivered in exchange for existing Senior Subordinated Notes in the Exchange Offer or in exchange for Exchange Debentures, the Indentures and the Registration Rights Agreement (as defined below) will have been duly executed and delivered, such Offered Securities and Additional Notes will have been duly executed, authenticated, issued and delivered and will conform, in all material respects, to the description thereof contained in the Offering Document and the Indentures, the Registration Rights Agreement and such Offered Securities and Additional Notes will constitute legal, valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equity principles; and, with respect to the Registration Rights Agreement, except that rights to indemnity and contribution may be limited by federal and state securities laws and public policy considerations.
(e) Except as contemplated by this Agreement or as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Issuer and any person that would give rise to a valid claim against the Issuer or any Purchaser for a brokerage commission, finder's fee or other like payment in connection with the transactions contemplated by this Agreement.
(f) No consent, approval, authorization, or order of, or filing with, any govern mental agency or body or any court is required for the consummation of the Tender Offer, the Exchange Offer, the Preferred Stock Transaction or the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Issuer, other than as may be required under the Securities Act and the Rules and Regulations of the Commission thereunder with respect to the Registration Rights Agreement among the Issuer and the Purchasers to be dated as of the Closing Date (the "Registration Rights Agreement") and the transactions contemplated there under, and such as may be required by securities or blue sky laws of any state of the United States or of any foreign jurisdiction in connection with the offer and sale of the Offered Securities.
(g) The execution, delivery and performance of the Indentures, the Registration Rights Agreement and this Agreement, the consummation of the Tender Offer, the Exchange Offer, and the Preferred Stock Transaction, and the issuance and sale of the Offered Securities and the Additional Notes and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Issuer or any subsidiary of the Issuer or any of their properties, (ii) any agreement or instrument to which the Issuer or any such subsidiary is a party or by which the Issuer or any such subsidiary is bound or to which any of the properties of the Issuer or any such subsidiary is subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) the charter or by-laws of the Issuer or any such subsidiary, except, in the case of an issuance clause (i) or (ii), such breaches, violations or defaults that individually or in the aggregate would not have a Material Adverse Effect; and the Issuer has full corporate power and authority to consummate the Refinancing, including, without limitation, to authorize, issue and sell the Offered Securities to be sold by the Issuer as contemplated by this Agreement and the Additional Notes as contemplated by the Exchange Offer Circular and the Preferred Stock Transaction.
(h) This Agreement has been duly authorized, executed and delivered by the Issuer.
(i) Except as disclosed in the Offering Document, and except for liens granted under the Issuer's accounts receivable securitization facility, the Issuer and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and, except as disclosed in the Offering Document, the Issuer and its subsidiaries hold any leased real or personal property under valid and enforce able leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
(j) The Issuer and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of Notesproceedings relating to the revocation or modification of any such certificate, authority or permit that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(k) No labor dispute with the employees of the Issuer or any of its subsidiaries exists or, to the knowledge of the Issuer, is imminent that could reasonably be expected to have a Material Adverse Effect.
(l) The Issuer and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business as now operated by them, or used in the conduct of the business as now operated by them, except to the extent that the failure to own or possess or the inability to acquire such intellectual property rights would not individually or in the aggregate have a Material Adverse Effect; and the Issuer has not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Issuer or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, neither the Issuer nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Issuer is not aware of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Issuer, any of its subsidiaries or any of their respective properties that, individually or in the aggregate, could reason ably be expected to have a Material Adverse Effect, or to materially and adversely affect the ability of the Issuer to perform its obligations under any of the Indentures, the Registration Rights Agreement or this Agreement, to consummate the Tender Offer, the Exchange Offer or the Preferred Stock Transaction or which are otherwise material in the context of the sale of the Offered Securities; and, to the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated.
(o) The financial statements included in the Offering Document present fairly the financial position of the Issuer and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements, have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; and the assumptions used in preparing the pro forma financial statements included in the Offering Document provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts.
(p) Except as disclosed in the Offering Document, since the date of the most recent Private Placement Memorandumlatest audited financial statements included in the Offering Document, there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise) other), business, properties or results of operations of the Issuer which and its subsidiaries taken as a whole (it being understood that a change in the price of the Issuer's common stock or the continuation of operating losses consistent with the Issuer's historical results shall be deemed not to be, in and of themselves, such a material adverse change), and, except as disclosed in or contemplated by the Offering Document, there has been no dividend or distribution of any kind declared, paid or made by the Issuer on any class of its capital stock.
(q) The Issuer is not been disclosed an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Dealer in writing United States Investment Company Act of 1940 (the "Investment Company Act"), nor is it a closed-end investment company required to be registered, but not registered, thereunder; and (iv) the Issuer is not and, after giving effect to the offering and sale of the Offered Securities, the application of the proceeds thereof as described in default the Offering Document and the consummation of the Tender Offer, the Exchange Offer and the Preferred Stock Transaction, will not be an "investment company" as defined in the Investment Company Act.
(r) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. auto mated inter-dealer quotation system.
(s) Assuming the accuracy of the representations and warranties of the Purchasers contained herein, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act; and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), other than in connection with the Issuer's obligations under the Registration Rights Agreement.
(t) Neither the Issuer nor any of its obligations hereunderaffiliates, nor any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Notes or, Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any material respect, form of general solicitation or general advertising within the meaning of Rule 502(c) under the Issuing Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(b) of Regulation S. The Issuer, its affiliates and Paying Agent any person acting on their behalf have complied and will comply with the offering restrictions requirement of Regulation S. The Issuer has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement and the Registration Rights Agreement.
(u) The Issuer is subject to Section 13 or 15(d) of the Exchange Act.
(v) The Issuer and its subsidiaries are in compliance in all material respects with the Communications Act of 1934 (as amended by the Telecommunications Act of 1996, the "Communication
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to SCM, and each Selling Group Member with whom SCM has entered into or will enter into a Selling Group Member Agreement, that as of the date hereof and as of each date that the Units are sold hereunder; provided, that, to the extent such representations and warranties are given only as of a specified date or dates, the Issuer only makes such representations and warranties as of such date or dates:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 a. This Agreement and the Issuing and Paying Agency Agreement have has been duly authorized, executed and delivered by the Issuer and constitute legal, constitutes a valid and legally binding obligations obligation of the Issuer Issuer, enforceable against the Issuer in accordance with their terms its terms, except as the same may be subject to applicable the effects of (i) bankruptcy, insolvency insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, generally and subject, as to enforceability, to (ii) general principles of equity (regardless of whether enforcement is sought considered in a proceeding at law or in equity or at law) equity);
b. The Issuer has obtained all necessary approvals, consents, licenses and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption registrations from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental entity or public regulatory body any other person or authorityentity necessary to perform its obligations hereunder and shall maintain all such approvals, including consents and registrations in full force and effect during the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery term of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance performance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, such obligations will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate not contravene or result in a breach of any provision of its certificate of incorporation, by-laws or a default under other organizational document or any agreement, instrument, order, law or regulation binding upon it;
c. The Issuer has complied and will comply in all material respects with all applicable federal and state securities laws in connection with the offering of the terms Units
d. The Issuer has or will prepare copies of the Issuer’s charter documents Offering Documents, as the same may be amended or by-lawssupplemented by Issuer from time to time, any contract or instrument including the subscription agreement for the Units, for delivery to which prospective purchasers of the Issuer is a party or Units in accordance with the instructions provided by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree SCM (the “Subscription Agreement”); provided that SCM and the Selling Group Members will be entitled to rely upon the accuracy and completeness of any court or government instrumentality, to which the Issuer is subject or all information provided by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or Company and, subject to the ability other provisions of this Agreement and the Sponsor Consulting Agreement, shall have no additional obligation to independently verify the accuracy or completeness of such information other than information relating to SCM and its affiliates and the information in the section of the PPM entitled “Plan of Distribution”;
e. The PPM and all Offering Documents will not, as of their date and as supplemented or amended by the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threateneddate of each Closing, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing intentionally and Paying Agency Agreement.
2.9 The Issuer is not knowingly contain an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or intentionally and the Private Placement Memorandum and the Company Information, taken as a whole, do not knowingly omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Issuer makes no warranty or representation with respect to any statement contained in the PPM or Offering Documents made in reliance upon and in conformity with information furnished to the Issuer by SCM or any Selling Group Member for use in the PPM;
f. Neither the Issuer, nor any of its affiliates, nor any person acting on their respective behalf, directly or indirectly, will offer or sell during the Term, or has knowingly offered or sold within the last 12 months preceding the Term, the Units or any securities convertible or exchangeable into the Units, in any manner prohibited by Rule 502(c) of the Securities Act of 1933, as amended.
2.11 Each g. The Issuer will, subject to timely receipt of all applicable information from SCM, timely file an electronic Notice of Exempt Offering of Securities on Form D relating to the Offering with the Securities and Exchange Commission (athe “SEC”) issuance under Regulation D and any required amendments thereto;
h. None of Notes by the Issuer, any of its predecessors, any director, executive officer, other officer of the Issuer hereunder and (b) amendment participating in the Offering or supplement any beneficial owner of 20% or more of the Private Placement Memorandum shall be deemed Issuer’s outstanding voting equity securities, calculated on a representation and warranty by basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Issuer in any capacity at the time of sale (each, an “Issuer Covered Person” and, together “Issuer Covered Persons”) is subject to the Dealer, as any of the date thereof“Bad Actor” disqualifications described in Rule 506(d)(1)(i) through 506(d)(1)(viii) under the Securities Act (a “Disqualifying Event”), thatexcept for a Disqualifying Event covered by Rule 506(d)(2) or Rule 506(d)(3) under the Securities Act; provided, both before and after giving effect however, that the Issuer has exercised reasonable care to such issuance and after giving effect to such amendment or supplement, determine: (i) the representations identity of each person that is an Issuer Covered Person and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) whether any Issuer Covered Person is subject to a Disqualifying Event; further provided, however, that the Issuer has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) of the Securities Act, and has furnished to SCM a copy of any disclosures provided thereunder;
i. With respect to each Issuer Covered Person, the Issuer has established procedures reasonably designated to ensure that the Issuer receives notice from each such Issuer Covered Person of: (i) any Disqualifying Event relating to that Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualifying Event relating to that Issuer Covered Person, in each case, occurring up to and including, the last date on which Limited Liability Interest are offered in the case of an issuance of Notes, Offering; and
j. The Issuer will be structured and operated in a manner to at all times comply with the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations exemption from registration provided in Section 3(c)(5)(C) of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subjectInvestment Company Act of 1940, as to enforceabilityamended. Except as specifically set forth herein, to general principles Company and Issuer make no other warranties, express or implied, arising out of equity (regardless of whether enforcement is sought or in a proceeding connection with this Agreement, and specifically disclaim any other express or implied warranty. SCM acknowledges and agrees that Company and Issuer does not and cannot guarantee any specific business outcome or result arising in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations connection with SCM performance hereunder, under the Notes orincluding, in without limitation, any material respect, under the Issuing and Paying Agent Agreementactual or attempted sale of Units hereunder.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) ), operations or operations business prospects of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, or under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. (a) The Issuer represents and warrants thatas follows:
2.1 (i) The Issuer is a corporation duly organized, organized and validly existing and corporation in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to executeown its property, to carry on its business as presently being conducted, to execute and deliver this Agreement, the Issuing and perform its obligations under Paying Agency Agreement, and the Notes, and to perform and observe the conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer and constitute constitutes the legal, valid and binding obligations agreement of the Issuer enforceable against Issuer. The issuance and sale of Notes by the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes hereunder have been duly authorizedand validly authorized by the Issuer and, when delivered by the Issuing and when issued Paying Agent as provided in the Issuing and Paying Agency Agreement, each Note will be duly and validly issued and will constitute the legal, valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)Issuer.
2.4 (iii) Assuming compliance that the Notes are offered and sold in the manner contemplated by the Dealer with the procedures applicable to it set forth in Section 1 hereof6 below, the offer and sale by the Issuer of such Notes will constitute exempt transactions under Section 4(2) of the Notes in the manner contemplated hereby do not require 1933 Act and Rule 506 thereunder, and, accordingly, registration of the Notes under the Securities Act, pursuant 1933 Act will not be required. Qualification of an indenture with respect to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended, will not be required in connection with the offer, issuance, sale or delivery of the Notes.
2.5 (iv) The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness Issuer is neither an "investment company" nor a "company controlled by an investment company" within the meaning of the IssuerInvestment Company Act of 1940, as amended.
2.6 Except as provided in Section 1.6(j(v) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, authority is required to authorize, or is otherwise required in connection with with, the execution, delivery or performance of, of this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities Agreement or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 (vi) Neither the execution and delivery by the Issuer of any of this Agreement and Agreement, the Issuing and Paying Agency Agreement, nor Agreement and the issuance of the Notes in accordance with the Issuing and Paying Agency AgreementNotes, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (ix) result in the creation or of imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, Issuer or (iiy) violate or result in a breach or a default under any of the terms of the Issuer’s 's charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government governmental instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 (vii) Except as disclosed in the Company InformationSEC filings, there is are no litigation actions, suits, proceedings, claims or governmental proceeding pendinginvestigations pending or, or to the knowledge of the Issuer threatenedIssuer, threatened against or affecting the Issuer or any of its subsidiaries officers or directors or any persons who control the Issuer (within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act) or to which any property of the Issuer is subject, which could reasonably be expected to in any way result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer Issuer, or materially prevent or interfere with, or materially and adversely affect the ability Issuer's execution, delivery or performance of, any of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementAgreement and the Notes, of which the Placement Agent has not been notified in writing.
2.9 (viii) The Issuer is not an “investment company” initial Offering Materials do not, and any amendments or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940supplements thereto and any subsequent Offering Materials and any amendments or supplements thereto will not, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were are made, not misleading.
2.11 (b) Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the DealerPlacement Agent, as of the date thereof, that, that both before and after giving effect to such issuance and after giving effect to such amendment or supplementissuance, (i) the representations and warranties given by of the Issuer set forth in this Section 2 3(a) hereof remain true and correct in all material respects on and as of such date as if made on and as of such date (except to the extent such representations and warranties expressly relate solely to an earlier date, ); (ii) the corporate resolutions and certificate of incumbency referred to in the case of an issuance of Notes, the Notes being issued on such date have been duly Section 5 hereof remain accurate and validly issued in full force and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), effect; (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumOffering Materials, there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer Placement Agent in writing or in SEC filings; and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent AgreementAgency Agreement or under any Note.
Appears in 1 contract
Sources: Commercial Paper Placement Agency Agreement (Harsco Corp)
Representations and Warranties of the Issuer. The (a) Issuer represents and warrants thatas follows:
2.1 The (i) Issuer is a corporation duly organized, organized and validly existing and corporation in good standing under the laws of the jurisdiction state of its incorporation and has all the requisite corporate power and authority to executeown its property, to carry on its business as presently being conducted, to execute and deliver this Agreement, the Issuing and perform its obligations under Paying Agency Agreement, and the Notes, and to perform and observe the conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer and constitute constitutes the legal, valid and binding obligations agreement of the Issuer. The issuance and sale of Notes by Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes hereunder have been duly authorizedand validly authorized by Issuer and, when delivered by the Issuing and when issued Paying Agent as provided in the Issuing and Paying Agency Agreement, each Note will be duly and validly issued and will constitute the legal, valid and binding obligations obligation of Issuer.
(iii) The Notes are exempt from the registration requirements of the Issuer enforceable against the Issuer in accordance with their terms1933 Act by reason of Section 3(a)(3) thereof. Accordingly, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant 1933 Act will not be required. Qualification of an indenture with respect to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended, will not be required in connection with the offer, issuance, sale or delivery of the Notes.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness (iv) Issuer is neither an "investment company" nor a "company controlled by an investment company" within the meaning of the IssuerInvestment Company Act of 1940, as amended.
2.6 Except as provided in Section 1.6(j(v) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, authority is required to authorize, or is otherwise required in connection with with, the execution, delivery or performance of, of this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities Agreement or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 (vi) Neither the execution and delivery by Issuer of any of this Agreement and Agreement, the Issuing and Paying Agency Agreement, nor Agreement and the issuance of the Notes in accordance with the Issuing and Paying Agency AgreementNotes, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (ix) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, Issuer or (iiy) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents 's Certificate of Incorporation or byBy-lawsLaws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of or any court or government of governmental instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information(vii) There are no actions, there is no litigation suits, proceedings, claims or governmental proceeding pending, investigations pending or to the knowledge of the Issuer threatened, threatened against or affecting the Issuer or any of its subsidiaries officers or directors or any persons who control Issuer (within the meaning of Regulation S-X, 17 C.F.R. Part 210) or to which could any property of Issuer is subject, which would be reasonably be expected likely to result in a material and adverse change in the condition (financial or otherwise) of Issuer, or operations materially prevent or interfere with, or materially and adversely affect Issuer's execution, delivery or performance of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementAgreement or the Notes.
2.9 (viii) The Issuer Support Agreement remains in full force and effect, has not been amended since July 2, 1985, and is not an “investment company” or an entity “controlled” by an “investment company” within the meaning legal, valid and binding obligation of the Investment Company Act of 1940, as amendedMetropolitan.
2.10 Neither the Private Placement Memorandum nor the Company Information contains (ix) The initial Offering Materials do not, and any amendments or supplements thereto and any subsequent Offering Materials and any amendments or supplements thereto will not, contain any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were are made, not misleading.
2.11 (b) Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplementissuance, (i) the representations and warranties given by the of Issuer set forth in this Section 2 3(a) remain true and correct in all material respects on and as of such date as if made on and as of such date (except to the extent such representations and warranties expressly relate solely to an earlier date, ); (ii) the corporate resolutions and certificate of incumbency referred to in the case of an issuance of Notes, the Notes being issued on such date have been duly Section 5 remain accurate and validly issued in full force and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), effect; (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreement.most
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Metropolitan Life Insurance Co/Ny)
Representations and Warranties of the Issuer. The Issuer represents Sellers represent and warrants warrant to, and agree with, the several Purchasers that:
2.1 The Issuer is a corporation duly organized, validly existing (a) A preliminary offering circular and in good standing under an offering circular relating to the laws of Offered Securities being purchased by the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement Purchasers have been duly authorized, executed and delivered prepared by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance for use by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required Purchasers in connection with the executionresale of the Offered Securities. Such preliminary offering circular and offering circular, delivery or performance ofas supplemented as of the date of this Agreement, together with any other document approved by the Issuer for use in connection with the contemplated resale of the Offered Securities are hereinafter collectively referred to as the "Offering Document." On the date of this Agreement, the Notes or Offering Document does not, and at the Issuing and Paying Agency AgreementClosing Date (as defined below) the Offering Document will not, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains include any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
2.11 Each . The preceding sen tence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Issuer by any Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b). The Issuer's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission (athe "Commission") issuance of Notes and all subsequent reports (collectively, the "Exchange Act Reports") which have been filed by the Issuer hereunder and (b) amendment with the Commission or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer sent to stockholders pursu ant to the DealerSecurities Exchange Act of 1934 (the "Exchange Act"), as of when they were filed with the date thereofCommission, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct conformed in all material respects on to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as of such date as if made on and as of such date, (ii) described in the case Offering Document; and the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of an issuance property or the conduct of Notesits business requires such qualification, except to the Notes being issued extent that the failure to be so qualified or be in good standing would not have a material adverse effect on such date have the condition (financial or other), business, properties or results of operations of the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect"). The Issuer is qualified to do business as a foreign corporation in the State of New York.
(c) Each subsidiary of the Issuer, including WCC, has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued and out standing capital stock of each subsidiary of the Issuer has been duly authorized and validly issued and constitute legalis fully paid and nonassessable; and the capital stock of each subsidi ary owned by the Issuer, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(d) The Exchangeable Preferred Stock has been duly authorized by the Issuer; and when the Exchangeable Preferred Stock has been delivered by the Sellers and paid for pursuant to this Agreement on the Closing Date (as defined below), such Exchangeable Preferred Stock will be validly issued, fully paid and nonassessable and will conform, in all material respects, to the description thereof contained in the Offering Document; and the issuance of the Offered Securities is not subject to preemptive or other similar rights. Each of the indenture between the Issuer and United States Trust Company of New York (in such capacity, the "Trustee") that will govern the Exchange Debentures (the "Indenture") and the Exchange Debentures has been duly authorized; and when the Indenture has been duly executed and delivered and the Exchange Debentures have been executed and authenticated in accordance with the Indenture and delivered in exchange for the Exchangeable Preferred Stock, the Exchange Debentures will constitute, valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general applicability relating to or affecting creditors’ ' rights generally and the general equity principles; and the Exchange Debentures conform, in all material respects, to the description thereof contained in the Offering Document.
(e) The Registration Rights Agreement (as defined herein) has been duly authorized, executed and delivered; Registration Rights Agreement constitutes a valid and legally binding obligation of the Issuer, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; except that rights to indemnity and contribution may be limited by federal and state securities laws and public policy considerations.
(f) Except as contemplated by this Agreement or as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Sellers and any person that would give rise to a valid claim against the Sellers or any Purchaser for a brokerage commission, finder's fee or other like payment in connection with the transactions contemplated by this Agreement.
(g) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Sellers, other than as may be required under the Securities Act and the Rules and Regulations of the Commission thereunder with respect to the Registration Rights Agreement among the Issuer and the Purchasers dated the date hereof (the "Registration Rights Agreement") and the transactions contemplated thereunder, and such as may be required by securities or blue sky laws of any state of the United States or of any foreign jurisdiction in connection with the offer and sale of the Offered Securities.
(h) The execution, delivery and performance of the Registration Rights Agreement and this Agreement, and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Sellers or any subsidiary of the Issuer or any of their properties, (ii) any agreement or instrument to which the Sellers or any subsidiary of the Issuer is a party or by which the Sellers or any subsidiary of the Issuer is bound or to which any of the properties of the Sellers or any subsidiary of the Issuer is subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) the charters or by-laws of the Sellers or any subsidiary of the Issuer, except, in the case of an issuance clause (i) or (ii), such breaches, violations or defaults that individually or in the aggregate would not have a Material Adverse Effect; and the Issuer has full corporate power and authority to authorize, issue and sell the Offered Securities to be sold by the Issuer and WCC as contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by the Sellers.
(j) Except as disclosed in the Offering Document, the Issuer and its subsidi aries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and, except as disclosed in the Offering Document, the Issuer and its subsidiaries hold any leased real or personal property under valid and enforce able leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
(k) The Issuer and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of Notesproceedings relat ing to the revocation or modification of any such certificate, authority or permit that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(l) No labor dispute with the employees of the Issuer or any of its subsidiaries exists or, to the knowledge of the Issuer, is imminent that could reasonably be expected to have a Material Adverse Effect.
(m) The Issuer and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (▇▇▇▇▇▇ ▇▇▇▇▇▇, "intellectual property rights") necessary to conduct the business as now operated by them, or used in the conduct of the business as now operated by them, except to the extent that the failure to own or possess or the inability to acquire such intellectual property rights would not individually or in the aggregate have a Material Adverse Effect; and the Issuer has not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if deter mined adversely to the Issuer or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the Issuer nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Issuer is not aware of any pending investigation which might lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Issuer, any of its subsidiaries or any of their respective properties that, individually or in the aggregate, could reason ably be expected to have a Material Adverse Effect, or to materially and adversely affect the ability of the Issuer to perform its obligations under the Registration Rights Agreement or this Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and, to the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated.
(p) The financial statements included in the Offering Document present fairly the financial position of the Issuer and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with generally accepted account ing principles in the United States applied on a consistent basis; and the assumptions used in preparing the pro forma financial statements included in the Offering Document provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial state ment amounts.
(q) Except as disclosed in the Offering Document, since the date of the most recent Private Placement Memorandumlatest audited financial statements included in the Offering Document, there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise) other), business, properties or results of operations of either of the Issuer which and its subsidiaries taken as a whole (it being understood that the acquisition of certain assets from US ONE Communications Corp., the acquisition from Telesoft Corp. of its Internet services subsidiary and the execution of an agreement by the Issuer to acquire substantially all the assets (the "MIDCOM Acquisition") of MIDCOM Communications, Inc. ("MIDCOM") (or the termination of such agreement), a change in the Issuer's stock price or the continuation of operating losses consistent with the Issuer's historical results shall be deemed not to be, in and of themselves, such a material adverse change), and, except as disclosed in or contemplated by the Offering Document, there has been no dividend or distribution of any kind declared, paid or made by the Issuer on any class of its capital stock.
(r) The Issuer is not been disclosed an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Dealer in writing United States Investment Company Act of 1940 (the "Investment Company Act"), nor is it a closed-end investment company required to be registered, but not registered, thereunder; and (iv) the Issuer is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof, will not be an "investment company" as defined in default the Investment Company Act.
(s) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. auto mated inter-dealer quotation system.
(t) Assuming the accuracy of the representations and warranties of the Purchasers contained herein, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act; and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), other than in connection with the Issuer's obligations under the Registration Rights Agreement.
(u) Except for sales to or through the Purchasers, neither the Issuer nor any of its obligations hereunderaffiliates, nor any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Notes or, Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any material respect, form of general solicitation or general advertising within the meaning of Rule 502(c) under the Issuing Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(b) of Regulation S. The Issuer, its affiliates and Paying Agent Agreement.any person acting on their behalf have complied and will comply with the offering restrictions requirement of Regulation S. The Issuer has not entered and
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) ), operations or operations business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementAgreement (a “Material Adverse Effect”).
2.8 Except as publicly disclosed in the Company InformationIssuer’s filings with the SEC prior to the date hereof, there is no litigation or governmental proceeding pendingfiled, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to might result in a material adverse change in the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency AgreementMaterial Adverse Effect.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance To the knowledge of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notesany executive officer, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations general counsel or chief legal officer (each a “Responsible Officer”) of the Issuer, enforceable against neither the Issuer nor any Subsidiary is in accordance violation of any law, rule or regulation (including any Anti-Corruption Law, Sanction or any law, rule or regulation relating to the protection of the environment or to employee health or safety), or in default with their termsrespect to any judgment, subject writ, injunction or decree of any Governmental Authority, where such violation or default would be reasonably likely to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought result in a proceeding Material Adverse Effect. “Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, or other similar legislation in equity other jurisdictions. “Sanction(s)” means any international economic sanction administered or at lawenforced by the federal government of the United States (including without limitation, the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”)), (iii) in the case of an issuance of NotesUnited Nations Security Council, since the date of the most recent Private Placement MemorandumEuropean Union, there has been no material adverse change in the condition (financial Her Majesty’s Treasury or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, under the Issuing and Paying Agent Agreementother relevant sanctions authority.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Hartford Financial Services Group Inc/De)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofthis Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6(j) hereofthis Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency AgreementAgent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.8 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries (other than that which could is disclosed in the Company Information) which would reasonably be expected to result in a material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agent Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries (acting on behalf of the Issuer or any of its subsidiaries) (i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other payment of any kind whatsoever in violation of the law applicable to the Issuer or such subsidiary, or (ii) is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a violation or a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and the Issuer and its subsidiaries have each conducted their businesses in compliance with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer and its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries (i) is currently the subject of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (which, as of the date of this Agreement, are Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries.
2.16 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunderunder (a) the Notes, under the Notes or, or (b) in any material respect, under this Agreement or the Issuing and Paying Agent Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Diamond Offshore Drilling Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited limitations on rights to indemnity and contribution imposed by federal securities lawsapplicable law.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, the Notes will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereofof this Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof and Rule 506 thereunderthereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided Assuming compliance by the Dealer with the procedures set forth in Section 1.6(j) hereof1 of this Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except for the filing by the Issuer of an Exchange Act report with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might (other than a breach or default under any of the terms of the Issuer’s charter documents or by-laws) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise) ), or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which could reasonably be expected to result in a material adverse change in the financial condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information (in each case, other than the Dealer Information) contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any provision of the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United Kingdom; or (v) used any corporate funds to make any unlawful bribe, rebate, payoff, influence payment, kickback or other payment.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency having jurisdiction over the Issuer or any of its subsidiaries (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or controlled affiliate of the Issuer or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), or other relevant sanctions authority (collectively, “Sanctions”), nor is controlled by an individual or entity that is currently subject to Sanctions, and the Issuer will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
2.14 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing or has been publicly disclosed through filings with the SEC that are accessible through ▇▇▇▇▇ and (iv) the Issuer is not in default of any of its obligations hereunder, under the Notes or, in any material respect, or under the Issuing and Paying Agent Agency Agreement.
Appears in 1 contract