Additional Representations of Party B. For the purpose of Section 3 of the Agreement, Party B hereby further represents and warrants to Party A (which representations will be deemed to be repeated by Party B at all times until the termination of this Agreement and any Transactions) that:
Additional Representations of Party B. Party B hereby acknowledges and agrees that (i) with respect to this Agreement and each Transaction, Party B will maintain, and be in full compliance with, all operative and constituent documents and investments policies, procedures, restrictions and guidelines of Party B, and (ii) each Transaction will also comply in all respects with all applicable laws, rules, regulations, interpretations, guidelines, procedures, and policies of applicable governmental and regulatory authorities affecting Party B, this Agreement, the Transactions, or the performance of obligations hereunder.
Additional Representations of Party B. For the purpose of Section 3 of the Agreement, Party B further represents and warrants to Party A (which representations will be deemed repeated by Party B on each date on which a Transaction is entered into) that: This Agreement and each Transaction hereunder are not prohibited investments under Party B’s Confidential Offering Memorandum.
Additional Representations of Party B. For the purpose of Section 3 of the Agreement, Party B further represents and warrants to Party A (which representations will be deemed repeated by Party B at all times until the termination of this Agreement and any Transactions) that this Agreement and the Credit Support Documents are in proper legal form for the enforcement thereof in Argentina against Party B and Party B's Credit Support Provider (to the extent each is a party thereto); provided that in the event any legal proceedings are brought in the courts of Argentina, a Spanish translation of the documents required in such proceedings, including this Agreement, prepared by a court-approved translator would have to be approved by the court after the defendant had been given an opportunity to be heard with respect to the accuracy of the translation, and the proceedings would thereafter be based on the translated documents. In the event of any foreign exchange restriction or prohibition in Argentina, any and all payments due under this Agreement or under any Transaction by the party subject to such restrictions shall nevertheless be made in U.S. Dollars. The party subject to such restrictions shall obtain U.S. Dollars through (i) the sale of Bonos Externos de la Republica Argentina or of any other public or private bond issued in Argentina, or (ii) failing (i), any other mechanism for the acquisition of U.S. Dollars in any exchange market. Any costs and expenses incurred in effecting such sale or acquisition shall be borne by the party subject to any such restrictions.]
Additional Representations of Party B. Party B acknowledges that Party A will hedge its exposure under this Transaction by purchasing the Number of Shares in the open market in a commercially reasonable manner. In connection therewith, Party B hereby represents and warrants to Party A as follows:
(i) it is not entering into the Transaction (x) on the basis of, and is not aware of, any material non-public information with respect to the Issuer or the Shares, (y) in anticipation of, in connection with, or to facilitate a tender offer, or (z) to create actual or apparent trading activity in the Shares or to raise or depress or otherwise manipulate the price of the Shares; and it will not become aware of any material non-public information with respect to the Issuer or the Shares at any time prior to the Settlement Date; provided that if Party B is in breach of the immediately preceding representation, it shall provide an immediate notice to Deutsche Bank AG London Branch, Winchester House, 1 Great Wxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Attention: Cxxxx Xxxxxx, Email: cxxxx.xxxxxx@xx.xxx, Tel: +00 000 000 0000 Fax: +44207 5000000 of that fact to Party A (but without disclosing to Party A the nature of the material non-public information that has caused it to be in such a breach) and Party B understands and acknowledges that Party A will cease purchases of such Shares upon receipt of such notice from Party B;
(ii) is in compliance with its reporting obligations under Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the Shares and will comply with such obligations by filing with the SEC the Schedule 13D/A including this Confirmation within 48 hours of the Trade Date;
(iii) its entry into the Transaction and Party A’s purchases of Shares contemplated hereby do not and will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act;
(iv) neither it nor any of its affiliates will purchase any Shares during the period from the Trade Date to the Settlement Date and it will not enter into any arrangements (whether similar to this Transaction or not) pursuant to which any person were to purchase any Shares on its account during the period from the Trade Date to the Settlement Date;
(v) it is not a “U.S. person” (as defined in Regulation S (“Regulation S” under the US Securities Act of 1933, as amended (the “Securities Act”) and the entry into this Transaction is an “offshore transaction” (as defined in Regulation S).
Additional Representations of Party B. Party B represents and warrants to Party A that (i) this Agreement constitutes a Hedge Agreement (as defined in the Credit Agreement) and (ii) Party B's obligations hereunder are secured by the Credit Agreement..
Additional Representations of Party B. Party B represents and warrants and shall be deemed to represent and warrant to Party A at all times until the termination of this Agreement that:
(i) Party A is entitled to rely conclusively upon and will incur no liability from operating pursuant to any request, instruction, certificate, representation or other document furnished to Party A, or action taken, by any employee or agent of the Investment Manager in connection with this Agreement and the Transactions thereunder, as though the same had been given or made by Party B;
(ii) All the assets of Party B are available to satisfy the obligations of Party B under this Agreement;
(iii) None of the assets of Party B are, or will be at any time while any Transactions are outstanding hereunder, deemed to be the assets of any “employee benefit plan” that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or subject to any law, rule regulation or binding policy which is materially similar to Section 406 of ERISA or Section 4975 of the Code, whether or not pursuant to United States Department of Labor regulation 29 C.F.R. § 2510.3-101;
(iv) Investment Manager, on behalf of Party B, has the power to execute this Agreement and any other documentation relating to this Agreement and to deliver and to bind Party B in connection with its obligations in connection with this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver, including without limitation any Credit Support Documents;
(v) Neither Party A nor any affiliate has provided or will provide any advice that has formed or may form a primary basis for Party B’s decision to enter into this Agreement or any Transaction entered into hereunder; and
(vi) Party B represents and warrants that (1) its Operative Documents are in full force and effect and (2) Party B will promptly notify Party A if there is a change to or modification of Party B’s Operative Documents, investment policies or guidelines or to the nature of Party B’s business. “Operative Documents” means the Investment Management Agreement, Confidential Memorandum, trust indenture, corporate charter, partnership agreement, by-laws or other similar documents, instruments or other constitutive documents of Party B, as applicable, any written investment policies, procedures, restrictions or guidelines of Party B and the ...
Additional Representations of Party B. For purposes only of representations of or by Party B made in and deemed repeated pursuant to Section 3 of the Agreement, Section 3 of the Agreement is hereby amended by adding additional subparagraphs to said Section 3, which subparagraphs shall be lettered (e), (f), (g), (h), (i) and (j), respectively, and shall read as follows:
Additional Representations of Party B. Party B represents to Party A on and as of the date hereof and at all times until the termination of this Agreement that:
(A) Party B is not a “special entity”, as such term is defined in Section 4s(h)(2)(C) of the CEA (7 USC Section 6s(h)(2)(C)) or Commodity Futures Trading Commission (“CFTC”) Rule 23.401(c);
(B) with respect to each source of funds to be used by it to enter: into such Transactions (each such source being referred to herein as a “Source”), the Source is not the asset of any “plan” (at such term is defined in Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA”)) subject to Title I of ERISA, or otherwise out of “plan assets” within the meaning of Section 3(42) of ERISA and the regulations thereunder;
(C) Each Transaction is intended to be exempt from, or otherwise not subject to regulation under, the Investment Company Act of 1940 and Party B is exempt from regulation under such act;2
(D) Party B is entering into each Transaction as a hedging instrument in order to hedge or mitigate commercial risk incurred in the conduct of its business;
(E) Party B is not, and does not act on behalf of, a “Municipal Entity” or an “Obligated Person,” as defined in Section 15B of the Securities Exchange Act of 1934, as amended and the municipal advisor registration rules of the U.S. Securities and Exchange Commission (the “SEC”), 17 C.F.R. Section 240.15Ba1-1, et seq., the rules and regulations of the Municipal Securities Rulemaking Board (“MSRB”) as well as any formal interpretations thereof by the SEC, the MSRB, the Financial Industry Regulatory Authority or any other competent regulatory authority with respect to municipal advisor registration; and
(F) Party B is a professional investor (as defined in Schedule 1 to the Securities and Futures Ordinance, Cap. 571 of the Laws of Hong Kong).
Additional Representations of Party B. For the purpose of Section 3 of the Agreement, Party B further represents and warrants to Party A (which representations will be deemed repeated by Party B at all times until the termination of this Agreement and any Transactions) that: this Agreement and any Transaction hereunder do not constitute any kind of investment by Party B that is proscribed by any Investment Policy, limitation or restriction to which Party B is subject; and
(ii) it is not any employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (“ERISA”), is not acting on behalf of an employee benefit plan subject to ERISA, and is not using assets which are or which are deemed under ERISA to be assets of an employee benefit.
