Available Under Sample Clauses
Available Under. Each Class of Contracts SCHEDULE 2
Available Under. Each Class of Contracts
Available Under. Each Class of Contracts AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT RULE 30e-3
Related to Available Under
Payments to the Liquidity Provider Under the Intercreditor Agreement In order to provide for payment or repayment to the Liquidity Provider of any amounts hereunder, the Intercreditor Agreement provides that amounts available and referred to in Articles II and III of the Intercreditor Agreement, to the extent payable to the Liquidity Provider pursuant to the terms of the Intercreditor Agreement (including, without limitation, Section 3.6(f) of the Intercreditor Agreement), shall be paid to the Liquidity Provider in accordance with the terms thereof. Amounts so paid to the Liquidity Provider shall be applied by the Liquidity Provider to Liquidity Obligations then due and payable in accordance with the Intercreditor Agreement or, if not provided for in the Intercreditor Agreement, then in such manner as the Liquidity Provider shall deem appropriate.
Negative undertakings The Borrowers jointly and severally undertake with each Creditor that, from the date of this Agreement and so long as any moneys are owing under the Security Documents and while all or any part of the Total Commitment remains outstanding, they will not, without the prior written consent of the Agent (acting on the instructions of the Majority Banks): 8.3.1 Negative pledge permit any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be created or extended over all or any part of their respective present or future undertakings, assets, rights or revenues to secure or prefer any present or future Indebtedness or other liability or obligation of any Relevant Party or any other person;
Termination of the Obligations of the Underwriters The obligations of the Underwriters to purchase the Notes on the Closing Date shall be terminable by the Representatives by written notice delivered to the Issuer and the Company if at any time on or before the Closing Date (a) trading in securities generally on the New York Stock Exchange shall have been suspended or materially limited, or there shall have been any setting of minimum prices for trading on such exchange, (b) a general moratorium on commercial banking activities in New York or Virginia shall have been declared by any of Federal, New York state or Virginia state authorities, (c) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis, the effect of which on the financial markets of the United States is such as to make it, in the Representatives’ reasonable judgment, impracticable to market the Notes on the terms and in the manner contemplated in the Prospectus or (d) any change or any development involving a prospective change, materially and adversely affecting (i) the Trust Assets taken as a whole or (ii) the business or properties of the Issuer, the Company or the Seller occurs, which, in the Representatives’ reasonable judgment, in the case of either clause (i) or (ii), makes it impracticable or inadvisable to market the Notes on the terms and in the manner contemplated in the Prospectus. Upon such notice being given, the parties to this Agreement shall (except for the liability of the Issuer, the Company and the Seller under Section 9 and Section 10 of this Agreement and the liability of each Underwriter under Section 17 of this Agreement) be released and discharged from their respective obligations under this Agreement.
Conditions to the Obligations of the Underwriter The obligations of the Underwriter to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Applicable Time and the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); and any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; (ii) the Company has an outstanding capitalization as set forth in the Disclosure Package and the Final Prospectus (except for subsequent issuances, if any, pursuant to dividend reinvestment or director or employee stock purchase or benefit plans or pursuant to the exercise of options and except for repurchases in connection with open market repurchase plans); (iii) the Securities being sold hereunder by the Selling Stockholders have been duly and validly authorized and issued and are fully paid and nonassessable; (iv) this Agreement has been duly authorized, executed and delivered by the Company; (v) the statements in each of the Disclosure Package and the Final Prospectus under the captions “Description of Common Stock,” “Important Provisions of Our Governing Documents and Delaware Law”, “Risk Factors—Anti-takeover provisions in our organizational documents could delay or prevent a change of control” and “Risk Factors—Our Restated By-Laws designate certain Delaware courts as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or other employees”, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein. (vi) neither the sale of the Securities by the Selling Stockholders to the Underwriters pursuant to this Agreement, nor the consummation by the Company of the transactions herein contemplated nor the fulfillment by the Company of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to (A) the charter or by-laws of the Company or (B) any applicable federal or Indiana statute, law, rule, regulation or the Delaware General Corporation Law (the “Covered Laws”), or, to such counsel’s knowledge, any judgment, order or decree applicable to the Company or its subsidiaries of any federal, Delaware or Indiana court, regulatory body, administrative agency, governmental body or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties, which conflict, breach, violation, lien, charge or encumbrance, in the case of clause (B), would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities or this Agreement; (vii) no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States having jurisdiction under the Covered Laws over the Company is required to be obtained or made by the Company for the sale of the Securities by the Selling Stockholders to the Underwriters pursuant to this Agreement or the consummation by the Company of the other transactions contemplated by this Agreement nor compliance by the Company with the applicable provisions thereof, except such consents, approvals, authorizations, orders, registrations or qualifications as may be required by the securities or Blue Sky laws of the various states, the Act and the securities laws of any jurisdiction outside the United States in which the Securities are offered; (viii) the Company is not an “investment company” or an entity controlled by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended; (ix) the Registration Statement became effective under the Act upon filing with the Commission; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or threatened; and (x) the Registration Statement and the Final Prospectus (other than the documents incorporated by reference therein, the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder. Such counsel shall also state that that nothing has come to their attention that caused them to believe that (i) the Registration Statement, on the Effective Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package, as amended or supplemented at the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Final Prospectus, as of its date and on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no belief). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the corporate law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and as specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Company shall have requested and caused its General Counsel, ▇▇▇▇ ▇. ▇▇▇▇▇▇, to have furnished to the Underwriter his opinion dated the Closing Date and addressed to the Underwriter to the effect that: (i) the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not have a Material Adverse Effect; (ii) each Significant Subsidiary has been duly incorporated or organized and is validly existing in good standing under the laws of the jurisdiction of its organization, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; each Significant Subsidiary is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect; (iii) except as otherwise disclosed in the Disclosure Package and the Final Prospectus, all of the issued and outstanding capital stock or other equity interest of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law) is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; (iv) neither the sale of the Securities by the Selling Stockholders to the Underwriters pursuant to this Agreement, nor the consummation by the Company of the transactions herein contemplated nor the fulfillment by the Company of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to (A) the charter or by-laws of any Significant Subsidiary or (B) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other financial agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, which such conflict, breach, violation, lien, charge or encumbrance, in the case of clause (B), would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with this Agreement; (v) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Disclosure Package and the Final Prospectus, and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; (vi) the documents incorporated by reference in the Disclosure Package and the Final Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (vii) all descriptions in the Registration Statement, the Disclosure Package and the Final Prospectus of contracts and other documents to which the Company or any of its subsidiaries is a party are accurate in all material respects; and to the best of such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement, the Disclosure Package or the Final Prospectus other than those described or referred to therein. (d) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, to have furnished to the Underwriter their opinion dated the Closing Date and addressed to the Underwriter, to the effect that: (i) each of the Selling Stockholders listed on Schedule IV (the “Domestic Selling Stockholders”) is validly existing and, to the extent such concept exists in the relevant jurisdiction, in good standing under the laws of its jurisdiction of organization; (ii) the execution and delivery of the Underwriting Agreement have been duly authorized by each of the Domestic Selling Stockholders, and the Underwriting Agreement has been duly executed and delivered by each Selling Stockholder; (iii) assuming that (a) DTC is a “clearing corporation” as defined in Section 8-102(a)(5) of the UCC, and (b) the Underwriter acquires its interest in the Securities it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), the Underwriter that has purchased Securities from the Selling Stockholders delivered on the date hereof to DTC, made payment therefor pursuant to the Agreement and has had such Securities credited to a securities account of the Underwriter maintained with DTC will have acquired a securities entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities, and no action based on an adverse claim may be asserted against the Underwriter with respect to such security entitlement; and (iv) the sale of the Securities by the Selling Stockholders to the Underwriter pursuant to the Agreement does not, and the performance by the Selling Stockholders of their obligations in the Agreement will not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York or pursuant to the Delaware Revised Uniform Limited Partnership Act or the Delaware Limited Liability Company Act, in each case, that in such counsel’s experience normally would be applicable to general business entities with respect to such sale or performance, except such as have been obtained or effected under the Act and the Exchange Act (but such counsel need not express any opinion relating to any state securities or Blue Sky laws), or (b) result in a violation of the organizational documents of any Domestic Selling Stockholder, or (c) result in a violation of any United States federal or New York State law or published rule or regulation thereunder or the Delaware Revised Uniform Limited Partnership Act or Delaware Limited Liability Company Act that in such counsel’s experience normally would be applicable to general business entities with respect to such sale or performance (but such counsel need not express any opinion relating to the United States federal securities laws or any state securities or Blue Sky laws). (e) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇ and Calder, counsel for ▇▇▇▇▇▇▇ ▇▇▇▇▇ BMET Investors Offshore Holdings, L.P., and GS Capital Partners VI Offshore Fund, L.P., certain of the Selling Stockholders, to have furnished to the Underwriter their opinions dated the Closing Date and addressed to the Underwriter, in the forms reasonably acceptable to the Underwriter. (f) The Selling Stockholders shall have requested and caused P+P Pöllath + Partners, counsel for GS Capital Partners VI Gmbh & Co. KG, a Selling Stockholder, to have furnished to the Underwriter their opinion dated the Closing Date and addressed to the Underwriter, in a form reasonably acceptable t
Positive Undertakings At all times until full discharge of the Secured Obligations, the Issuer covenants with the Security Trustee that it shall: (a) inform the Security Trustee without undue delay of the occurrence of any event which results in any of the representations and warranties contained in Clause 5 (Representations and Warranties) hereof being untrue or inaccurate; (b) inform the Security Trustee without undue delay of any attachment (Pfändung) in respect of the Pledged Bonds or any part thereof, or any other event which may impair or jeopardise the Security Trustee's rights relating to the Pledged Bonds. In the event of any such attachment, the Issuer shall provide the Security Trustee without undue delay with a copy of the attachment order (Pfändungsbeschluss) and all other documents which are requested by the Security Trustee and which are necessary or expedient for a defence against such attachment. In addition, the Issuer shall inform the attaching creditor of the existence and effect of this Agreement; (c) notify the Depo Bank without undue delay about the Pledge, by sending a notice by registered post with return receipt (Einschreiben mit Rückschein), requesting the Depo Bank to acknowledge receipt of the notification by sending to the Security Trustee an acknowledgement, and provide evidence to the Security Trustee in form of a copy of such signed notification and the respective return receipt (Rückschein) within five Business Days after the date of this Agreement; such notification about, and acknowledgement of, the Pledge can also be made as part of any relevant agreement to which the Depo Bank is a party; (d) if so requested by the Security Trustee, notify Clearstream within 5 Business Days after such request, or procure that Clearstream is notified by the Depo Bank within 5 Business Days after such request, of the Pledges over the Pledged Bonds and the pertinent co-ownership interests in the collective custody holdings (Miteigentumsanteile am Girosammelbestand), and in particular, the assignment of any claims against Clearstream for delivery of the certificates (Abtretung des Herausgabeanspruchs) representing such bonds by registered post with return receipt (Einschreiben mit Rückschein), and provide evidence to the Security Trustee in form of a copy of such signed notification and the respective return receipt (Rückschein) without undue delay; and (e) use reasonable efforts to procure that, with respect to and/or in connection with the Pledged Bonds, the respective pertinent co-ownership interests of the Issuer in the collective custody holdings (Miteigentumsanteile am Girosammelbestand) and the Issuance Account, the Depo Bank waives or subordinates any right of retention and any right of set-off as well as any existing pledges, including, without limitation, any pledge existing by operation of the general business conditions (Allgemeine Geschäftsbedingungen) of the Depo Bank or otherwise in respect of the Issuance Accounts, if any, so that the Pledge will rank ahead of all other pledges affecting the Issuance Accounts, and to inform the Security Trustee accordingly.