Representations and Warranties of 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 its jurisdiction of incorporation, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law). 2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect. 2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect. 2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 4 contracts
Samples: Commercial Paper Dealer Agreement (BlackRock Inc.), Commercial Paper Dealer Agreement (BlackRock Inc.), Commercial Paper Dealer Agreement (BlackRock Inc.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition financial condition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition of the Issuer or before any arbitrator the ability of any kind the Issuer to perform its obligations under this Agreement, the Notes or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.giving
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Moodys Corp /De/), Commercial Paper Dealer Agreement (Moodys Corp /De/), Commercial Paper Dealer Agreement (Moodys Corp /De/)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as otherwise disclosed in any filings made by the Issuer with in the SECCompany Information (as defined below), there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which is reasonably likely to result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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) sale and 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 and time thereof, that, both before and after giving effect to such sale and 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 on and as of such date and time as if made on and as of such datedate and at such time, and (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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance or sale of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Equifax Inc), Commercial Paper Dealer Agreement (Equifax Inc), Commercial Paper Dealer Agreement (Starbucks Corp)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition financial condition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition of the Issuer or before any arbitrator the ability of any kind the Issuer to perform its obligations under this Agreement, the Notes or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Wrigley Wm Jr Co), Commercial Paper Dealer Agreement (Wrigley Wm Jr Co), Commercial Paper Dealer Agreement (Wrigley Wm Jr Co)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D thereunder, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended. Neither the Issuer nor any affiliate (as defined in Regulation 501(b) of Regulation D), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which will be integrated with the sale of the Notes in a manner which would require the registration of the Notes under the Securities Act.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No Except as provided in Section 1.6(j), 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 regarding the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Federated Department Stores Inc /De/), Commercial Paper Dealer Agreement (Federated Department Stores Inc /De/), Commercial Paper Dealer Agreement (Federated Department Stores Inc /De/)
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, organized and validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, and when the consideration therefor is received by the Issuer, 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No 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 4 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default would have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which would result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agent Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Nike Inc), Commercial Paper Dealer Agreement (Nike Inc), Commercial Paper Dealer Agreement (Nike Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and ---------------------------------------- warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 and validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorized this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Stock Option Agreement, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by Issuer and, assuming this Stock Option Agreement has been duly and validly authorized, executed and delivered by the Issuer and constitute legalGrantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally; the availability of injunctive relief and other equitable remedies remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(regardless c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of whether enforcement is sought in this Stock Option Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, a proceeding in equity sufficient number of authorized shares of Issuer Common Stock for issuance upon exercise of the Option, each of which, upon issuance pursuant to this Stock Option Agreement and when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances and security interests (other than those imposed by Grantee, its affiliate or at by applicable 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2d) thereof, 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 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 The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby except as required by the HSR Act and thereby any material foreign competition authorities (if applicable), and, with respect to Section 4 hereof, compliance with the provisions of the Act and any applicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, the giving or constitute a default under, any term, condition or provision of notice any charter or otherwisebylaw, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such Governmental Approval consents, waivers, approvals, licenses or authorizations or where such acceleration or defaults could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Effect on Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 3 contracts
Samples: Preferred Shares Rights Agreement (Quickturn Design Systems Inc), Stock Option Agreement (Quickturn Design Systems Inc), Stock Option Agreement (Quickturn Design Systems Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition financial condition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer Issuer’s periodic reports filed with the SEC, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition of the Issuer or before any arbitrator the ability of any kind the Issuer to perform its obligations under this Agreement, the Notes or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Cendant Corp), Commercial Paper Dealer Agreement (Cendant Corp), Commercial Paper Dealer Agreement (Cendant Corp)
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as rights to indemnity and contribution may be limited by federal or state 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 on the part of the Issuer 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to Issuer, which mortgage, lien, charge or encumbrance would have a Material Adverse Effectmaterial adverse effect on the consolidated financial position or consolidated results of operations of the Issuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s limited partnership certificate or agreement, or (iviii) conflict with, violate or result in a breach of or constitute a default under any indenture, agreement of the terms of any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to violation, breach or default might have a Material Adverse Effect, (v) result in material adverse effect on the consolidated financial position or require the creation or imposition consolidated results of any Lien upon or with respect to any property now owned or hereafter acquired by operations of the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed Other than as may be set forth or contemplated in any filings made by the Issuer with the SECCompany Information, there are no actions, suits legal or governmental proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting which the Issuer or any of its properties subsidiaries is a party or of which any property of the Issuer or any of its subsidiaries is the subject, which, if determined adversely to the Issuer or any of its subsidiaries, would individually or in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to the aggregate have a Material Adverse Effectmaterial adverse effect on the consolidated financial position or consolidated results of 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; and, to the best of the Issuer’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
2.9 The Issuer is not 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 Information, taken as a whole, contains any untrue statement of a material fact 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 and its subsidiaries, any director, officer, employee or agent thereof, is an individual or entity, or is controlled by a person that is, currently the subject of any Sanctions, nor is the Issuer or any subsidiary located, organized or resident in a Designated Jurisdiction. The Issuer and its subsidiaries have instituted and maintained policies and procedures designed to promote and achieve compliance with applicable Sanctions.
2.12 The Issuer and its subsidiaries have conducted their businesses in compliance with applicable Anti-Corruption Laws in all material respects and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
2.13 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 consolidated financial condition position or consolidated results of operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Alliancebernstein Holding L.P.), Commercial Paper Dealer Agreement (Alliancebernstein L.P.), Commercial Paper Dealer Agreement (Alliancebernstein Holding L.P.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Except as provided in Section 1.6(j) hereof, and assuming compliance by the Dealer with the procedures set forth in Section 1, 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 of Form D pursuant to Rule 503 under the Securities Act 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), operations or business 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” 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 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 the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 by incorporation of Company Information therein), there has been no material adverse change in the condition (financial condition or otherwise), operations or business of the Issuer which, if not publicly available, 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 under of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 3 contracts
Samples: Commercial Paper Dealer Agreement (Transocean Inc), Commercial Paper Dealer Agreement (Transocean Inc), Commercial Paper Dealer Agreement (Transocean Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as otherwise disclosed in any filings made by the Issuer with in the SECCompany Information (as defined below), there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which might reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), operations or 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” 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, that would be materially adverse to the holders of the Notes or potential holders of the Notes which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Dealer Agreement (Cigna Corp), Dealer Agreement (Cigna Corp)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing existing, and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the requisite corporate power and authority to own enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Issuer and the consummation by Issuer of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Issuer, and no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Agreement, and the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Issuer and, assuming this Agreement has been duly and validly authorized, executed, and delivered by Grantee, constitutes a valid and binding obligation of Issuer enforceable against Issuer in accordance with its properties terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to creditors' rights generally; the availability of injunctive relief and other equitable remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(c) Issuer has taken all necessary action to authorize and reserve for issuance and to carry on permit it to issue, and at all times from the date of this Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, such number of authorized shares of Issuer Common Stock as is equal to the number of Option Shares (or such other amount as may be required pursuant to Section 10 hereof), each of which, upon issuance pursuant to this Agreement and when paid for as provided herein, will be validly issued, fully paid, and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances, and security interests and not subject to any preemptive rights.
(d) The execution, delivery, and performance of this Agreement by Issuer and the consummation by it of the transactions contemplated hereby except as required by the HSR Act (if applicable), and, with respect to Section 4, compliance with the provisions of the 1933 Act and any applicable state securities laws, do not require the consent, waiver, approval, license, or authorization of or result in the acceleration of any obligation under, or constitute a default under, any term, condition, or provision of any charter or bylaw, or any indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation, or decree or any restriction to which Issuer or any property of Issuer or its business as now being and hereafter proposed to be conducted and subsidiaries is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationbound, except where the failure to be so qualified obtain such consents, waivers, approvals, licenses, or authorizations or where such acceleration or defaults would not, individually or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to executeaggregate, 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Company Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Option Agreement (Medtronic Inc), Stock Option Agreement (Xomed Surgical Products Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing existing, and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the all requisite corporate power and authority to own enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Issuer and the consummation by Issuer of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Issuer, and except to the extent of any Nasdaq requirements, no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Agreement, and the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Issuer and, assuming this Agreement has been duly and validly authorized, executed, and delivered by Grantee, constitutes a valid and binding obligation of Issuer enforceable against Issuer in accordance with its properties terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to creditors, rights generally; the availability of injunctive relief and other equitable remedies and general principles of equity; and limitations imposed by law on indemnification for liability under federal securities laws.
(c) Except as may be required in accordance with Nasdaq requirements, Issuer has taken all necessary action to authorize and reserve for issuance and to carry on permit it to issue, and at all times from the date of this Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, such number of authorized shares of Issuer Common Stock as is equal to the number of Option Shares (or such other amount as may be required pursuant to Section 11 hereof), each of which, upon issuance pursuant to this Agreement and when paid for as provided herein, will be validly issued, fully paid, and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances, and security interests and not subject to any preemptive rights (collectively, "Encumbrances").
(d) Except as may be required in accordance with Nasdaq requirements, the execution, delivery, and performance of this Agreement by Issuer and the consummation by it of the transactions contemplated hereby except as required by the HSR Act (if applicable), and, with respect to Section 4, compliance with the provisions of the 1933 Act and any applicable state securities laws, do not require the consent, waiver, approval, license, or authorization of or result in the acceleration of any obligation under, or constitute a default under, any term, condition, or provision of any charter or bylaw, or any indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation, or decree or any restriction to which Issuer or any property of Issuer or its business as now being and hereafter proposed to be conducted and subsidiaries is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationbound, except where the failure to be so qualified obtain such consents, waivers, approvals, licenses, or authorizations or where such acceleration or defaults could not, individually or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to executeaggregate, 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Company Material Adverse Effect.
(e) The Company has taken all action and completed all amendments, if any, necessary or appropriate so that (i) the Rights Agreement dated as of February 26, 1997, as amended, between the Company and BankBoston, N.A. (the "Company Rights Agreement"), is inapplicable to the transactions contemplated by this Agreement, the Agreements to Facilitate Merger, and the Merger Agreement, and (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability execution of this Agreement, the Notes or Agreements to Facilitate Merger, and the Issuing Merger Agreement, and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge consummation of the Issuertransactions contemplated hereby and thereby, threatened against or do not and will not (w) result in any other way relating adversely to or affecting the Issuer or any of its properties Grantee being an "Acquiring Person" (as such term is defined in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at lawRights Agreement), (iiix) result in the case ability of an issuance any person to exercise any Rights under the Company Rights Agreement, (y) enable or require the Rights to separate from the shares of NotesCompany Common Stock to which they are attached or to be triggered or become exercisable, since the date of the most recent Private Placement Memorandum, there has been no material adverse change or (z) otherwise result in the financial condition occurrence of a "Distribution Date" or operations of "Shares Acquisition Date" (as such terms are defined in the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectCompany Rights Agreement).
Appears in 2 contracts
Samples: Stock Option Agreement (Arterial Vascular Engineering Inc), Stock Option Agreement (Medtronic Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition or before any arbitrator operations of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 the Dealer’s 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable 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 or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Commercial Metals Co), Commercial Paper Dealer Agreement (Commercial Metals Co)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and any limitations on rights to indemnity and contribution imposed by applicable 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and any limitations on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in 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 Agency Agreement.
2.9 The Issuer is not 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 Information, except for Dealer Information, contains any untrue statement of a material fact 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 Except as disclosed in the Company Information or as has been disclosed to the Dealer in writing, neither the Issuer nor any of its subsidiaries nor any director or officer, nor, to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that could result in a 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. Xxxxxxx Xxx 0000 (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates is aware of or has taken any action, directly or indirectly, that could result in a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the FCPA or the Bribery Act or similar law or regulation of any other relevant jurisdiction; and the Issuer, its subsidiaries and affiliates have each conducted their businesses in compliance, in all material respects, with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures that are reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
2.12 Except as disclosed in the Company Information or as has been disclosed to the Dealer in writing, 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 (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 best knowledge of the Issuer, threatened.
2.13 Except as disclosed in the Company Information or as has been disclosed to the Dealer in writing, neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (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, or could result in the imposition of Sanctions against, any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Except as disclosed in the Company Information or as has been disclosed to the Dealer in writing, neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (including, without limitation, Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed in the Company Information or as has been disclosed to the Dealer in writing or is not material to the analysis under any Sanctions, neither the Issuer nor any of its subsidiaries or affiliates has knowingly 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 or affiliates 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Laclede Gas Co), Commercial Paper Dealer Agreement (Laclede Gas Co)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and delivered and will constitute the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 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, 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any material contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effect, material adverse effect on the condition (vfinancial or otherwise) result in or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization ofand its subsidiaries, filing withtaken as a whole, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the 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 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 The Private Placement Memorandum nor the Company Information contains delivered to investors in connection with any sale of Notes will not contain any untrue statement of a material fact or omits 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; provided, that the Issuer makes no representation or warranty as to the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and limitations on rights to indemnity and contribution imposed by applicable 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 condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (FMC Technologies Inc), Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except insofar as rights to indemnification and contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered against pa;yment therefor, as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 PARI PASSU with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No Assuming compliance by the Dealer with the procedures set forth in Section 1, 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, and except for the requirement that the Issuer file with the SEC a notice on Form D in accordance with Rule 503 under the Securities Act and such amendments thereto as Rule 503 may require.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or event of default would reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition results of any Lien upon or with respect to any property now owned or hereafter acquired by operations of the Issuer or (vi) require any consent or authorization of, filing withand its subsidiaries taken as a whole, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed as may be set forth in any filings made by the Issuer with Company Information of which the SECDealer has been specifically advised, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which would reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition or results of 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 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 the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 MemorandumMemorandum (as most recently amended or supplemented, including by incorporation of or reference to Company Information therein), there has been no material adverse change in the financial condition or results of operations of the Issuer which, if not publicly available, and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing writing, and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectNotes.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Global Marine Inc), Commercial Paper Dealer Agreement (Global Marine Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing existing, and in good standing under the laws of its jurisdiction the State of incorporation, Indiana and has the requisite corporate power and authority to own enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Issuer and the consummation by Issuer of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Issuer, and no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Agreement, and the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Issuer and, assuming this Agreement has been duly and validly authorized, executed, and delivered by Grantee, constitutes a valid and binding obligation of Issuer enforceable against Issuer in accordance with its properties terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting or relating to creditors, rights generally; the availability of injunctive relief and other equitable remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(c) Issuer has taken all necessary action to authorize and reserve for issuance and to carry on permit it to issue, and at all times from the date of this Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, such number of authorized shares of Issuer Common Stock as is equal to the number of Option Shares (or such other amount as may be required pursuant to Section 10 hereof), each of which, upon issuance pursuant to this Agreement and when paid for as provided herein, will be validly issued, fully paid, and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances, and security interests and not subject to any preemptive rights.
(d) The execution, delivery, and performance of this Agreement by Issuer and the consummation by it of the transactions contemplated hereby except as required by the HSR Act (if applicable), and, with respect to Section 4, compliance with the provisions of the 1933 Act and any applicable state securities laws, do not require the consent, waiver, approval, license, or authorization of or result in the acceleration of any obligation under, or constitute a default under, any term, condition, or provision of any charter or bylaw, or any indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation, or decree or any restriction to which Issuer or any property of Issuer or its business as now being and hereafter proposed to be conducted and subsidiaries is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationbound, except where the failure to be so qualified obtain such consents, waivers, approvals, licenses, or authorizations or where such acceleration or defaults could not, individually or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to executeaggregate, 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Company Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Option Agreement (Medtronic Inc), Stock Option Agreement (Sofamor Danek Group Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.it
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Danaher Corp /De/), Commercial Paper Dealer Agreement (Danaher Corp /De/)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, legally valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as rights under this Agreement to indemnity and contribution may be limited by federal or state laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement upon payment of the purchase price therefor as determined in accordance with this Agreement, will be duly and validly issued and will constitute legal, legally valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries that the Issuer would have been required to disclose in any court or before any arbitrator of any kind or before or by any Governmental Authority that its 1934 Act reports and has had or could reasonably be expected to have a Material Adverse Effectnot so disclosed.
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 amendedamended (the "1940 Act").
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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 above in this Section 2 remain true and correct 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, legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Avery Dennison Corporation), Extendible Commercial Notes Dealer Agreement (Avery Dennison Corporation)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Staples Inc), Commercial Paper Dealer Agreement (Staples Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority to own enter into this Agreement and, subject to its properties and obtaining any approvals or consents referred to carry on its business as now being and hereafter proposed herein, to be conducted and is duly qualified and authorized to do business in each jurisdiction in which consummate the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effecttransactions contemplated hereby. The Issuer has all the requisite power execution and authority to execute, deliver and perform its obligations under the Notes, delivery 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 on the part of Issuer. This Agreement (i) has been duly executed and delivered by Issuer, (ii) constitutes the Issuer and constitute legal, valid and binding obligations obligation of the Issuer Issuer, and (iii) is enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to (A) bankruptcy, fraudulent transfer, insolvency, moratorium, reorganization, moratorium conservatorship, receivership, or other similar state or federal debtor relief laws from time to time in effect which affect relating to or affecting the enforcement of the rights of creditors of FDIC-insured institutions or the enforcement of creditors’ ' rights in generally, and (B) general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought applied in a proceeding court of law or in equity or at lawequity).
2.3 The Notes (b) Issuer has taken all necessary corporate and other action to authorize and reserve and to permit it to issue and, at all times from the date hereof until the obligation to deliver Issuer Common Stock upon the exercise of the Option terminates, will have been duly authorizedreserved for issuance, upon exercise of the Option, the number of shares of Issuer Common Stock necessary for Holder to exercise the Option, and when Issuer will take all necessary corporate action to authorize and reserve for issuance all additional shares of Issuer Common Stock or other securities which may be issued as provided in pursuant to Section 7 hereof upon exercise of the Issuing and Paying Agency AgreementOption. The shares of Issuer Common Stock to be issued upon due exercise of the Option, will including all additional shares of Issuer Common Stock or other securities which may be issuable pursuant to Section 7 hereof, upon issuance pursuant hereto, shall be duly and validly issued and will constitute legalissued, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereoffully paid, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreementnonassessable, and the issuance shall be delivered free and clear of the Notes in accordance with the Issuing and Paying Agency Agreementall liens, each in accordance with its respective termsclaims, charges, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator encumbrances of any kind or before or by nature whatsoever, including any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectpreemptive rights of any shareholder of Issuer.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Option Agreement (Floridafirst Bancorp Inc), Stock Option Agreement (Bb&t Corp)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures set forth in Section 1.6 of this Agreement, the offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries (other than that which is disclosed in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or the Company Information) which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), operations or 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.
2.9 The Issuer is not 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 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, with respect to any such information consisting of projections, forecasts and other forward-looking statements with respect to the Issuer or any of its subsidiaries (collectively, the “Projections”), the Issuer represents only that any such Projections will be prepared based upon good faith assumptions believed by it to be reasonable at the time delivered (it being understood that such Projections are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Issuer and its subsidiaries, that no guarantee or other assurance can be given that any Projections will be realized, and that actual results may differ from Projections and such difference may be material).
2.11 Neither the Issuer nor any of its Subsidiaries, directors or officers, nor, to the knowledge of the Issuer any agent or employee acting on behalf of the Issuer or any of its Subsidiaries (i) has used any corporate funds for any contribution, gift, entertainment or other expense relating to political activity in violation of laws applicable to the Issuer or such Subsidiary; (ii) has made any direct or indirect contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds in violation of laws applicable to the Issuer or such Subsidiary; (iii) has made any bribe, rebate, payoff, influence payment, kickback or other payment in violation of laws applicable to the Issuer or such Subsidiary; or (iv) is aware of or has taken any action, directly or indirectly, that would reasonably be expected to result in a 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. Xxxxxxx Xxx 0000 (the “Bribery Act”) or any similar law or regulation of any other relevant jurisdiction; and neither the Issuer nor any of its Subsidiaries, directors or officers nor, to the knowledge of the Issuer, any agent or employee acting on behalf of the Issuer or any of its Subsidiaries has violated the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the FCPA or the Bribery Act or any similar law or regulation of any other relevant jurisdiction; and the Issuer and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with, and which are expected to continue to ensure compliance with, the FCPA, the Bribery Act and any applicable similar law or regulation.
2.12 The operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including, without limitation, to the extent applicable, 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 in each other applicable jurisdiction (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, directors or officers nor, to the knowledge of the Issuer, any agent or employee of the Issuer or any of its Subsidiaries (i) is a person that is, or is 50% or more owned or otherwise controlled by a person that is (x) currently listed on any sanctions-related list of designated persons pursuant to 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 any other relevant sanctions authority (collectively, “Sanctions”) or (y) located, organized or resident in a country or territory that is, or whose government is, the subject of country-wide or territory-wide Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) (such persons described in clauses (x) and (y), “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 (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 a Sanctioned Person, in violation of applicable Sanctions, or (y) in any manner that will result in a violation of any Sanctions by, or would reasonably be expected to result in the imposition of Sanctions against, any party hereto or any person participating in the offering of Notes, whether as dealer, investor or otherwise.
2.14 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, in each case, in violation of applicable Sanctions.
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 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 the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer which, if not publicly available, 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 under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgent Agreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (Nasdaq, Inc.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the ability of the Issuer to perform its obligations under this Agreement, the Notes or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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) sale and 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 and time thereof, that, both before and after giving effect to such sale and 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 on and as of such date and time as if made on and as of such datedate and at such time, and (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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance or sale of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations ability of the Issuer whichto perform its obligations under this Agreement, if not publicly available, the Notes or the Issuing and Paying Agency Agreement which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Dell Inc), Commercial Paper Dealer Agreement (Dell Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Nelnet Inc), Commercial Paper Dealer Agreement (Nelnet Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 (i)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 The execution, delivery and performance by (ii) for the requirement that the Issuer of this Agreement and file with the Issuing and Paying Agency Agreement, and the issuance of the Notes SEC a notice on Form D in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default Rule 503 under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties Securities Act and such amendments thereto as Rule 503 may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effectrequire.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Tyson Foods Inc), Commercial Paper Dealer Agreement (Tyson Foods Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 There is and will rank at least pari passu with all be no other unsecured and unsubordinated indebtedness of the IssuerIssuer which is or will be contractually entitled to be senior in right of payment to the Notes.
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 Notes.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Sysco Corp), Commercial Paper Dealer Agreement (Sysco Corp)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the all requisite power and authority to own own, lease and operate its properties and to carry on its business businesses as now being conducted.
(b) The execution and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character delivery of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 consummation of the Issuing and Paying Agency Agreement transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Issuer, and no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved and authorized the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Agreement, and the consummation of the other transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Issuer and, assuming this Agreement has been duly and validly authorized, executed and delivered by the Issuer and constitute legalGrantee, constitutes a valid and binding obligations obligation of the Issuer Issuer, enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally; the availability of injunctive relief and other equitable remedies remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(regardless c) Issuer has taken all necessary action to reserve for issuance and to permit it to issue, and at all times from the date of whether enforcement is sought this Agreement through the Expiration Date will have reserved for issuance upon exercise of the Option, a sufficient number of authorized shares of Issuer Common Stock for issuance upon exercise in a proceeding in equity or at full of the Option, each of which shares, upon issuance pursuant to this Agreement and when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be free and clear of all claims, liens, charges, encumbrances and security interests (other than those imposed by applicable 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2d) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby hereby, except as required by the HSR Act and thereby any material foreign competition authorities (if applicable), and, with respect to Section 4 hereof, compliance with the provisions of the Act and any applicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, the giving or constitute a default under, any term, condition or provision of notice any charter or otherwisebylaw, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any of its subsidiaries or any property of Issuer or any of its subsidiaries is subject or bound, except where the failure to obtain such Governmental Approval could reasonably be expected permits, authorizations, consents or approvals or to make such filings or give such notice would not, individually or in the aggregate, have a Material Adverse Effect, (ii) violate any Applicable Law relating to Effect on the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectCompany.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Option Agreement (Cadence Design Systems Inc), Stock Option Agreement (Simplex Solutions Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except insofar as rights to indemnification and contribution may be limited by applicable 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Except as provided in Section 1.6(j), no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained by the Issuer to authorize, or is otherwise required to be obtained by the Issuer 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or default might reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition prospective financial condition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which might reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition, operations or prospective financial condition 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 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, providing 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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, operations or prospective financial condition or operations of the Issuer which, if not publicly available, which has not been disclosed to in the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectCompany Information.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (National Service Industries Inc), Commercial Paper Dealer Agreement (National Service Industries Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants that:
2.1 The to Holder that Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority and has taken all corporate action necessary to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationauthorize, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and to consummate the Issuing transactions contemplated hereby; and Paying Agency Agreement.
2.2 This that this Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer. Issuer hereby further represents and constitute legal, valid warrants to Holder that it has taken all necessary corporate action to authorize and binding obligations reserve for issuance upon exercise of the Issuer enforceable against Option the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium number of shares of Common Stock equal to the maximum number of shares of Common Stock at any time or similar state or federal debtor relief laws from time to time in effect which affect issuable upon exercise of the enforcement Option and that all shares of creditors’ rights in general and Common Stock, upon issuance pursuant to the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency AgreementOption, will be duly delivered free and validly issued and will constitute legalclear of all claims, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their termsliens, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereofencumbrances, and no indenture in respect security interests (other than those created by this Agreement) and not subject to any preemptive rights. The execution and delivery 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 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 grant of the various states Option hereunder and the exercise in connection with the offer and sale whole or in part of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes Option in accordance with the Issuing and Paying Agency this Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do will not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach the occurrence of any "Distribution Date," "Stock Acquisition Date" or constitute a default "Triggering Event" under the articles of incorporation or bylaws any rights agreement of the Issuer, (ivii) conflict withpermit any Person to exercise any rights issued under such rights agreement, result in a breach or (iii) cause the separation of or constitute a default under any indenture, agreement or other instrument such rights from the shares of Common Stock to which the they are attached or such rights becoming exercisable. Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 omits to state a material fact required to be stated therein or taken all action necessary to make the statements thereininapplicable to Grantee any state takeover, in light business combination, control share or other similar statute and any charter provisions which would otherwise be applicable to Grantee or any transaction involving Issuer and Grantee by reason 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 grant of the Private Placement Memorandum shall be deemed Option, the acquisition of beneficial ownership of shares of Common Stock as a representation and warranty by the Issuer to the Dealer, as result 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 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 grant of the IssuerOption, enforceable against or the Issuer in accordance with their termsacquisition of shares of Common Stock upon exercise of the Option, except as such enforceability may for statutes or provisions which by their terms cannot be limited waived or rendered inapplicable by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement any action of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectBoard of Directors of Issuer.
Appears in 2 contracts
Samples: Stock Option Agreement (Albertsons Inc /De/), Stock Option Agreement (Albertsons Inc /De/)
Representations and Warranties of 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 its jurisdiction the State of incorporation, has the power Delaware and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or event of default is reasonably be expected likely to have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with in the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which is reasonably likely to result in any court a material adverse effect on the ability of the Issuer to perform its obligations under this Agreement, the Notes or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise) or operations of the Issuer whichand its subsidiaries, if not publicly availabletaken as a whole, which has not been disclosed in the Company Information or to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Oracle Corp /De/), Commercial Paper Dealer Agreement (Oracle Corp)
Representations and Warranties of Issuer. The Issuer Is- suer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 and validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorize this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and sub- ject to the conditions contained in this Stock Option Agree- ment, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by Issuer and, assuming this Stock Op- tion Agreement has been duly and validly authorized, executed and delivered by the Issuer and constitute legalGrantee, constitutes a valid and binding obligations obli- gation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized(c) Issuer has taken all necessary action to autho- rize and reserve for issuance and to permit it to issue, and when issued as provided in at all times from the Issuing date of this Stock Option Agreement through the Expiration Date will have reserved for issuance upon exer- cise of the Option a number of authorized and Paying Agency Agreement, will be duly and validly unissued shares of Issuer Common Stock equal to 19.9% of the number of shares of Issuer Common Stock issued and will constitute legal, valid and binding obligations outstanding on the date of the Issuer enforceable against the Issuer in accordance with their terms, except as this Stock Option Agreement (or such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 number as may be required by the securities or Blue Sky laws pursuant to Section 10 hereof), each of the various states in connection with the offer which, upon issuance pursuant to this Stock Option Agreement and sale when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of the Notesall claims, liens, charges, encumbrances and security interests and not subject to any preemptive rights.
2.7 (d) The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby except as required by the HSR Act (if applicable), and, with respect to Section 4, com- pliance with the provisions of the Securities Act and thereby any ap- plicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, the giving or constitute a default under, any term, condition or provision of notice any charter or otherwiseby- law, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, con- tract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such Governmental Approval consents, waivers, approvals, licenses or authori- zations or where such acceleration or defaults could not, indi- vidually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Effect on Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Option Agreement (Jp Foodservice Inc), Stock Option Agreement (Jp Foodservice Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 other than obligations mandatorily preferred by law applying to companies generally.
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 n Commercial Paper Dealer Agreement 4(2) Program n 4 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 or as has been obtained or made and is still in full force and effect.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or default would reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition business of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer and its subsidiaries taken as a whole or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents(any such material adverse effect, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a "Material Adverse Effect").
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could which would be reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the The Private Placement Memorandum nor and the other Company Information contains when taken as a whole do not contain any untrue statement of a material fact or omits 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 Memorandumrecently published audited financial statements of the Issuer, there has been no material adverse change in the financial condition or operations of the Issuer which, if not publicly available, Material Adverse Effect which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its material obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (NYSE Euronext, Inc.), Commercial Paper Dealer Agreement (NYSE Euronext, Inc.)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants that:
2.1 The to Holder that Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority and has taken all corporate action necessary to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationauthorize, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and to consummate the Issuing transactions contemplated hereby; and Paying Agency Agreement.
2.2 This that this Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer. Issuer hereby further represents and constitute legal, valid warrants to Holder that it has taken all necessary corporate action to authorize and binding obligations reserve for issuance upon exercise of the Issuer enforceable against Option the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium number of shares of Common Stock equal to the maximum number of shares of Common Stock at any time or similar state or federal debtor relief laws from time to time in effect which affect issuable upon exercise of the enforcement Option and that all shares of creditors’ rights in general and Common Stock, upon issuance pursuant to the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency AgreementOption, will be duly delivered free and validly issued and will constitute legalclear of all claims, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their termsliens, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereofencumbrances, and no indenture in respect security interests (other than those created by this Agreement) and not subject to any preemptive rights. The execution and delivery 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 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 grant of the various states Option hereunder and the exercise in connection with the offer and sale whole or in part of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes Option in accordance with the Issuing and Paying Agency this Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do will not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach the occurrence of any "Distribution Date," Stock Acquisition Date" or constitute a default "Triggering Event" under the articles of incorporation or bylaws any rights agreement of the Issuer, (ivii) conflict withpermit any Person to exercise any rights issued under such rights agreement, result in a breach or (iii) cause the separation of or constitute a default under any indenture, agreement or other instrument such rights from the shares of Common Stock to which the they are attached or such rights becoming exercisable. Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 omits to state a material fact required to be stated therein or taken all action necessary to make the statements thereininapplicable to Grantee any state takeover, in light business combination, control share or other similar statute and any charter provisions which would otherwise be applicable to Grantee or any transaction involving Issuer and Grantee by reason 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 grant of the Private Placement Memorandum shall be deemed Option, the acquisition of beneficial ownership of shares of Common Stock as a representation and warranty by the Issuer to the Dealer, as result 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 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 grant of the IssuerOption, enforceable against or the Issuer in accordance with their termsacquisition of shares of Common Stock upon exercise of the Option, except as such enforceability may for statutes or provisions which by their terms cannot be limited waived or rendered inapplicable by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement any action of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectBoard of Directors of Issuer.
Appears in 2 contracts
Samples: Stock Option Agreement (American Stores Co /New/), Stock Option Agreement (American Stores Co /New/)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the all requisite corporate power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 authorizedand validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorize this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Stock Option Agreement, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by the Issuer and, assuming this Stock Option Agreement has been duly executed and constitute legaldelivered by Grantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally; the availability of injunctive relief and other equitable remedies remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(regardless c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of whether enforcement is sought in this Stock Option Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, a proceeding in equity sufficient number of authorized shares of Issuer Common Stock for issuance upon exercise of the Option, each of which shares, upon issuance pursuant to this Stock Option Agreement and when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances and security interests (other than those imposed by Grantee, its affiliates or at lawby Applicable 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2d) thereof, 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 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 The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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 termshereby, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.as
Appears in 2 contracts
Samples: Stock Option Agreement (DSP Communications Inc), Stock Option Agreement (Intel Corp)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 above in this Section 2 remain true and correct 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.and
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Oneok Inc /New/), Commercial Paper Dealer Agreement (Oneok Inc /New/)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or event of default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (International Paper Co /New/), Commercial Paper Dealer Agreement (International Paper Co /New/)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except as rights to indemnification and contribution may be limited by state or federal 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed as described in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 any director or officer, nor, to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that could result in a 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. Xxxxxxx Xxx 0000 (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates is aware of or has taken any action, directly or indirectly, that could result in a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the FCPA or the Bribery Act or similar law or regulation of any other relevant jurisdiction; and the Issuer, its subsidiaries and affiliates 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 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 (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 best knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (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, or could result in the imposition of Sanctions against, 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 any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (including, without limitation, 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 or affiliates 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 or affiliates 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Church & Dwight Co Inc /De/)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority to own enter into this Agreement and, subject to its properties and obtaining any approvals or consents referred to carry on its business as now being and hereafter proposed herein, to be conducted and is duly qualified and authorized to do business in each jurisdiction in which consummate the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effecttransactions contemplated hereby. The Issuer has all the requisite power execution and authority to execute, deliver and perform its obligations under the Notes, delivery 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 on the part of Issuer. This Agreement
(i) has been duly executed and delivered by Issuer, (ii) constitutes the Issuer and constitute legal, valid and binding obligations obligation of the Issuer Issuer, and (iii) is enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to (A) bankruptcy, fraudulent transfer, insolvency, moratorium, reorganization, moratorium conservatorship, receivership, or other similar state or federal debtor relief laws from time to time in effect which affect relating to or affecting the enforcement of the rights of creditors of FDIC-insured institutions or the enforcement of creditors’ ' rights in generally, and (B) general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought applied in a proceeding court of law or in equity or at lawequity).
2.3 The Notes (b) Issuer has taken all necessary corporate and other action to authorize and reserve and to permit it to issue and, at all times from the date hereof until the obligation to deliver Issuer Common Stock upon the exercise of the Option terminates, will have been duly authorizedreserved for issuance, upon exercise of the Option, the number of shares of Issuer Common Stock necessary for Holder to exercise the Option, and when Issuer will take all necessary corporate action to authorize and reserve for issuance all additional shares of Issuer Common Stock or other securities which may be issued as provided in pursuant to Section 7 hereof upon exercise of the Issuing and Paying Agency AgreementOption. The shares of Issuer Common Stock to be issued upon due exercise of the Option, will including all additional shares of Issuer Common Stock or other securities which may be issuable pursuant to Section 7 hereof, upon issuance pursuant hereto, shall be duly and validly issued and will constitute legalissued, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereoffully paid, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreementnonassessable, and the issuance shall be delivered free and clear of the Notes in accordance with the Issuing and Paying Agency Agreementall liens, each in accordance with its respective termsclaims, charges, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator encumbrances of any kind or before or by nature whatsoever, including any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectpreemptive rights of any shareholder of Issuer.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of 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 its jurisdiction the State of incorporation, has the power Minnesota and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer in the manner contemplated hereby do are not require registration of the Notes required to be registered under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(23(a)(3) thereof, 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 senior unsecured and unsubordinated indebtedness of the Issuer.
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 Notes.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition business of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization ofand its subsidiaries taken as a whole, filing withthe validity of the Notes, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition, operations or before any arbitrator business of any kind the Issuer and its subsidiaries taken as a whole, or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 Offering Materials nor the Company Information contains any untrue statement of a material fact 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 Offering Materials 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 MemorandumOffering Materials, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents represents, warrants and warrants thatcovenants for the benefit of the Lender and the Corporation, as follows:
2.1 (a) The Issuer is a corporation political subdivision duly organized, organized and validly existing and in good standing under the laws of its jurisdiction of incorporation, has the power and authority State.
(b) The Issuer is authorized to own its properties issue the Bonds and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, enter into 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 Loan Agreement, the Notes or the Issuing and Paying Agency Tax Compliance Agreement, except as may be required by the securities or Blue Sky laws of Issuer’s endorsement to the various states in connection with the offer and sale of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, Note and the transactions contemplated hereby and thereby do not to perform all of its obligations hereunder.
(c) The Issuer has duly authorized the issuance of the Bonds and will notexecution and delivery of the Issuer Documents by a resolution adopted by its board, by and all requirements have been met and procedures have occurred in order to ensure the passage enforceability of timethe Bonds and the Issuer Documents against the Issuer. The Issuer has taken all necessary action required to make the Bonds and the Issuer Documents the valid and binding obligation of the Issuer.
(d) The officers of the Issuer executing the Bonds, the giving of notice or otherwiseIssuer Documents and any related documents have been duly authorized to execute and deliver the Bonds, (i) require any Governmental Approval relating to the Issuer where Documents and the failure to obtain such Governmental Approval could reasonably be expected to have related documents by a Material Adverse Effect, (ii) violate any Applicable Law relating to resolution of the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach members of or constitute a default under the articles of incorporation or bylaws Board of the Issuer, or by other appropriate official action.
(ive) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which The Bonds and the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and Documents are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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 respective terms, except as such enforceability may be to the extent limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar state or federal debtor relief laws from time other Laws of general application relating to time in effect which affect the enforcement of creditors’ rights, the application of equitable principles, and to the limitations on enforcement remedies against public entities in the State.
(f) The Issuer has assigned to the Lender all of the Issuer’s rights in general and this Loan Agreement (except for the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law)right to receive any Additional Payments to the extent payable to the Issuer, (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 or operations any rights of the Issuer whichto indemnification and rights of notice, if not publicly available, inspection and consent) and the Note.
(g) The Issuer has not been disclosed and will not pledge, mortgage or assign this Loan Agreement, the Note or its duties and obligations hereunder to any person, firm or corporation, except as provided under the Dealer terms hereof.
(h) None of the issuance of the Bonds or the execution and delivery of the Issuer Documents, the consummation of the transactions contemplated thereby or the fulfillment of or compliance with the terms and conditions of the Bonds or the Issuer Documents violates any Law, conflicts with or results in writing and (iv) a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Issuer is not in now a party or by which it is bound or constitutes a default under any of its obligations hereunder, the foregoing or results in the creation or imposition of any prohibited lien upon any of the property or assets of the Issuer under the Issuing terms of any instrument or agreement.
(i) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of the Issuer’s knowledge, threatened against or affecting the Issuer, challenging the Issuer’s authority to issue the Bonds and Paying Agency Agreement to enter into the Issuer Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of the Bonds, the Issuer Documents or any other transaction of the Issuer which is similar hereto, or the Notes that is reasonably likely to result exclusion of the interest on the Bonds from gross income for federal income tax purposes under the Code, or would materially and adversely affect any of the transactions contemplated by the Issuer Documents.
(j) No board member, officer or other official of the Issuer has any financial interest whatsoever in a Material Adverse Effectthe Corporation or in the transactions contemplated by the Issuer Documents.
Appears in 1 contract
Samples: Loan Agreement
Representations and Warranties of Issuer. The Issuer hereby represents ---------------------------------------- and warrants that:
2.1 The to Holder that Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority and has taken all corporate action necessary to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationauthorize, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and to consummate the Issuing transactions contemplated hereby; and Paying Agency Agreement.
2.2 This that this Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer. Issuer hereby further represents and constitute legal, valid warrants to Holder that it has taken all necessary corporate action to authorize and binding obligations reserve for issuance upon exercise of the Issuer enforceable against Option the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium number of shares of Common Stock equal to the maximum number of shares of Common Stock at any time or similar state or federal debtor relief laws from time to time in effect which affect issuable upon exercise of the enforcement Option and that all shares of creditors’ rights in general and Common Stock, upon issuance pursuant to the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency AgreementOption, will be duly delivered free and validly issued and will constitute legalclear of all claims, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their termsliens, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereofencumbrances, 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 security interests (other unsecured and unsubordinated indebtedness of the Issuer.
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 than those created by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing Securities Act) and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect subject to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority preemptive rights. The execution and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability delivery of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge grant of the Issuer, threatened against Option hereunder and the exercise in whole or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not an “investment company” within the meaning part of the Investment Company Act of 1940Option in accordance with this Agreement, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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, will 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) result in the representations occurrence of any "Distribution Date" or "Shares Acquisition Date" under the Preferred Shares Rights Agreement between Microcide Pharmaceuticals, Inc. and warranties given by the Issuer set forth in this Section 2 remain true and correct on and Chasemellon Shareholder Services, L.L.C. Rights Agent, dated as of such date as if made on and as of such dateFebruary 2, 1999, (ii) in the case permit any Person to exercise any rights issued under any rights agreements 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in cause the case separation of an issuance any such rights from the shares of NotesCommon Stock to which they are attached or such rights becoming exercisable. Issuer has taken all action necessary to make inapplicable to Grantee any state takeover, since the date business combination, control share or other similar statute and any charter provisions which would otherwise be applicable to Grantee or any transaction involving Issuer and Grantee by reason of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations grant of the Issuer whichOption, if not publicly availablethe acquisition of beneficial ownership of shares of Common Stock as a result of the grant of the Option, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectacquisition of shares of Common Stock upon exercise of the Option.
Appears in 1 contract
Samples: Stock Option Agreement (Microcide Pharmaceuticals Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants that:
2.1 The to Holder that Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority and has taken all corporate action necessary to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationauthorize, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and to consummate the Issuing transactions contemplated hereby; and Paying Agency Agreement.
2.2 This that this Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer. Issuer hereby further represents and constitute legal, valid warrants to Holder that it has taken all necessary corporate action to authorize and binding obligations reserve for issuance upon exercise of the Issuer enforceable against Option the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium number of shares of Common Stock equal to the maximum number of shares of Common Stock at any time or similar state or federal debtor relief laws from time to time in effect which affect issuable upon exercise of the enforcement Option and that all shares of creditors’ rights in general and Common Stock, upon issuance pursuant to the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency AgreementOption, will be duly delivered free and validly issued and will constitute legalclear of all claims, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their termsliens, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereofencumbrances, 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 security interests (other unsecured and unsubordinated indebtedness of the Issuer.
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, than those created by 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect subject to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority preemptive rights. The execution and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability delivery of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge grant of the Issuer, threatened against Option hereunder and the exercise in whole or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not an “investment company” within the meaning part of the Investment Company Act of 1940Option in accordance with this Agreement, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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, will 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) result in the representations and warranties given by occurrence of any "Distribution Date," "Stock Acquisition Date" or "Triggering Event" under the Issuer set forth Alphabet Rights Agreement (as defined in this Section 2 remain true and correct on and as the Merger Agreement) of such date as if made on and as of such dateAbacus, (ii) in the case permit any Person to exercise any rights issued under any rights agreements of an issuance of NotesAbacus, 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in cause the case separation of an issuance any such rights from the shares of NotesCommon Stock to which they are attached or such rights becoming exercisable. Issuer has taken all action necessary to make inapplicable to Grantee any state takeover, since the date business combination, control share or other similar statute and any charter provisions which would otherwise be applicable to Grantee or any transaction involving Issuer and Grantee by reason of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations grant of the Issuer whichOption, if not publicly availablethe acquisition of beneficial ownership of shares of Common Stock as a result of the grant of the Option, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectacquisition of shares of Common Stock upon exercise of the Option, except for statutes or provisions which by their terms cannot be waived or rendered inapplicable by any action of Issuer or the Board of Directors of Issuer.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 2.6 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 2.7 No consent or action of, 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 The execution, 2.8 Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or default is reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 2.9 Except for matters as disclosed in any filings made by the Issuer with the SECPrivate Placement Memorandum, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority subsidiaries that has had or could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition, operations or 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 2.10 The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 2.11 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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 2.12 The Issuer has implemented and maintains in effect policies and procedures designed to promote compliance by the Issuer, its subsidiaries and its respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Issuer, its subsidiaries and to the knowledge of the Issuer, their respective employees, officers, directors and agents (in their capacity as such) that will act in any capacity in connection with or benefit from the commercial paper program established hereby, is in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not engaged in any activity that would reasonably be expected to result in the Issuer being designated as a Sanctioned Person. None of the Issuer or any subsidiary is a Sanctioned Person.
2.13 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition, operations or operations business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunderhereunder or under the Notes, under or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Cardinal Health Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except insofar as rights to indemnifications and contributions may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Except as provided in Section 1.6(j), no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained by the Issuer to authorize, or is otherwise required to be obtained by the Issuer 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be property is bound or any Governmental Approval relating and that is material to the Issuer, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which could the Issuer is subject or by which it or its property is bound, which violation, breach or event of default might reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the earnings, (v) result in business or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which might reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the earnings, business 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 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 relating 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 earnings, business or operations of the Issuer which, if not publicly available, which has not been disclosed to in the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectCompany Information.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 (i)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 (ii) for the requirement that the Issuer file with the SEC a notice on Form D in accordance with Rule 503 under the Securities Act and such amendments thereto as Rule 503 may require.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer and its subsidiaries taken as a whole, and the validity of the Notes or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have a Material Adverse Effectmaterial adverse change in the financial condition 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 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 , provided, that the Issuer hereunder and (b) amendment makes no representation 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectInformation.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Tyson Foods Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies 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.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies 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 The Assuming compliance by the Dealer with the procedures applicable to it, set forth in Section 1.6 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it, set forth in Section 1.6 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s charter documents or by-taws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating taw or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in or require the creation operations or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization ofand its subsidiaries, filing withtaken as a whole, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as may be disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), or operations or business prospects of any kind the Issuer and its subsidiaries, taken as a whole, or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 The Private Placement Memorandum nor (other than the Dealer Information) together with the Company Information contains will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated staled 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 above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), or operations or business prospects of the Issuer whichand its subsidiaries, if not publicly availabletaken as a whole, which has not been disclosed to in the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectCompany Information.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of Issuer. The Issuer represents and warrants thatthat each acceptance by the Issuer of an offer for the purchase of Notes shall be deemed an affirmation by the Issuer that its representations and warranties set forth in this Article 2 are true and correct at the time of such acceptance:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to 614407.14-CHISR02A - MSW enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the ability of the Issuer to perform its obligations under this Agreement, the Notes or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 Issuer Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or 614407.14-CHISR02A - MSW 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition or otherwise) or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 any director or officer, nor, to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that could result in a 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. Xxxxxxx Xxx 0000 (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries or affiliates is aware of or has taken any action, directly or indirectly, that could result in a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the FCPA or the Bribery Act or similar law or regulation of any other relevant jurisdiction; and the Issuer, its subsidiaries and affiliates 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 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 (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 best knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (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, or could result in the imposition of Sanctions against, 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 any director or officer, nor to the knowledge of the Issuer, any agent, employee, representative or affiliate 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 (including, without limitation, Crimea, 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 or affiliates 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 or affiliates 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, limited partnership validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its formation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 (a) 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 (b) filings with the SEC under the Exchange Act in connection with the entry into the Agreement.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition, operations or 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.
2.9 The Issuer is not 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 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 prepared or approved by the Issuer prior to use 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition, operations or operations business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) or made publicly available by the Issuer is not in default under any of its obligations hereunder, under on the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectSEC’s XXXXX system.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Williams Partners L.P.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and delivered and will constitute the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 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, 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer’s charter documents or by-laws, (iv) conflict with, result in a breach of any material contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effect, material adverse effect on the condition (vfinancial or otherwise) result in or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization ofand its subsidiaries, filing withtaken as a whole, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the 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 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 The Private Placement Memorandum nor the Company Information contains delivered to investors in connection with any sale of Notes will not contain any untrue statement of a material fact or omits 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; provided, that the Issuer makes no representation or warranty as to the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and limitations on rights to indemnity and contribution imposed by applicable 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 condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed as described in any filings made by the Issuer Issuer’s reports filed with the SECSecurities and Exchange Commission on Forms 10Q, 10K and 8K, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 and except as described in the Issuer’s reports filed with the Securities and Exchange Commission on Forms 10K, 10Q and 8K since such date, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Cardinal Health Inc)
Representations and Warranties of Issuer. The Issuer represents and warrants thatthat each offer by the Issuer of Notes for purchase shall be deemed an affirmation by the Issuer that its representations and warranties set forth in this Article 2 are true and correct at the time of such acceptance:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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.. 1384531.04-NYCSR07A - MSW
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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the ability of the Issuer to perform its obligations under this Agreement, the Notes or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.the Issuing and Paying Agency Agreement. 1384531.04-NYCSR07A - MSW
2.9 The Issuer is not 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 Issuer Information contains any untrue statement of a material fact 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 and sale 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 and time thereof, that, both before and after giving effect to such issuance and sale 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 on and as of such date and time as if made on and as of such datedate and at such time, (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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance or sale of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The In order to induce the Trustee to enter into this Limited Waiver and First Supplemental Indenture, the Issuer hereby represents and warrants that:
2.1 (a) The Issuer is a corporation duly organized, port authority and body corporate and politic validly existing and in good standing under the laws of its jurisdiction of incorporation, the State.
(b) The Issuer has the necessary power under the Act and authority has duly taken all action on its part required to own its properties execute and deliver this Limited Waiver and First Supplemental Indenture, to undertake the transactions contemplated by this Limited Waiver and First Supplemental Indenture and to carry on out its business as now being obligations hereunder.
(c) Neither the execution and hereafter proposed to be conducted delivery of this Limited Waiver and is duly qualified First Supplemental Indenture, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Limited Waiver and authorized to do business in each jurisdiction in which the character of its properties First Supplemental Indenture will conflict with or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The breach by the Issuer of any of the terms, conditions or provisions of the Act or any restriction, agreement, instrument, order or judgment to which the Issuer is a party or by which it is bound, or will constitute a default by the Issuer under any of the foregoing.
(d) Pursuant to a Resolution Authorizing Limited Waiver and Supplemental Indenture, and Authorizing and Approving Related Matters passed by its Board of Directors (the “Amending Resolution”) on March 9, 2023, the Issuer has all duly authorized the requisite power execution and authority to execute, deliver delivery of this Limited Waiver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency AgreementFirst Supplemental Indenture.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been (e) When duly authorized, executed and delivered on behalf of the Issuer, and assuming the due authorization, execution and delivery by the Issuer other parties hereto, this Limited Waiver and First Supplemental Indenture shall constitute legal, a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms; provided, except as such that the enforceability of this Limited Waiver and First Supplemental Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state other laws relating to or federal debtor relief laws from time to time in effect which affect the enforcement of limiting creditors’ rights in general generally and the availability application of equitable remedies (regardless general principles of whether enforcement is sought in a proceeding in equity or at law)equity.
2.3 The Notes have been duly authorized(f) To the best knowledge of the Issuer, as of this date, there is no action, suit or proceeding at law or in equity, pending or threatened against the Issuer to restrain or enjoin the execution and when issued as provided delivery of this Limited Waiver and First Supplemental Indenture or in any way contesting the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations validity or affecting the power of the Issuer enforceable against with respect to the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium documents or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes instruments executed by the Issuer in connection herewith or the manner contemplated hereby do not require registration existence of the Notes under Issuer or the Securities Act, pursuant to power or the exemption from registration contained in Section 4(a)(2) thereof, and no indenture in respect right of the Notes is required Issuer to be qualified under the Trust Indenture Act of 1939, as amendedenter into this Limited Waiver and First Supplemental Indenture.
2.5 (g) The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
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 Notes.
2.7 The execution, delivery and performance Amending Resolution was duly passed by the Issuer at a public meeting of this Agreement the Board of Directors of the Issuer held in accordance with all applicable laws and the Issuing at which a quorum was present and Paying Agency Agreementacting throughout, and the issuance Amending Resolution remains in full force and effect and has not been repealed, amended, modified or superseded.
(h) Except for the Specified Event of Default, the Notes in accordance Issuer has no knowledge of (i) any existing Event of Default under the Indenture, or (ii) any event, fact or circumstance that, with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwiseboth, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach constitute an Event of or constitute a default Default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectIndenture.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Samples: Limited Waiver and First Supplemental Indenture (PureCycle Technologies, Inc.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 (i)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 (ii) for the requirement that the Issuer file with the SEC a notice on Form D in accordance with Rule 503 under the Securities Act and such amendments thereto as Rule 503 may require.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer and its subsidiaries taken as a whole or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have a Material Adverse Effectmaterial adverse change in the financial condition 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 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 make no representation or warranty as to the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable 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 or operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Tyson Foods Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).) and limitations imposed on rights to indemnity and contribution imposed by applicable law. 230
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations imposed on rights to indemnity and contribution imposed by applicable law.
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 (i)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 (ii) for the requirement that the Issuer file with the SEC a notice on Form D in accordance with Rule 503 under the Securities Act and such amendments thereto as Rule 503 may require.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or event of default could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer and its subsidiaries taken as a whole or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have a Material Adverse Effectmaterial adverse change in the financial condition 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 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 make no representation or warranty as to the 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and limitations on rights to indemnity and contribution imposed by applicable 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 or operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Tyson Foods Inc)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Xxxxxxxx, as of the date hereof and as of the date of the Closing, as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the Republic of incorporation, the Xxxxxxxx Islands. Issuer has the all requisite corporate power and authority to own and lease its assets and properties and to carry on its business as and in the places such assets and properties are now being owned or leased and hereafter proposed to be conducted and where such business is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The presently conducted.
(b) Issuer has all the requisite full corporate power and authority to execute, execute and deliver this Agreement and to perform its obligations under hereunder, including the Notesissuance of the Issued Shares, and Issuer has taken all necessary corporate action required for the due authorization, execution, delivery and performance by it of this Agreement and Agreement, including the Issuing and Paying Agency Agreement.
2.2 issuance of the Issued Shares. This Agreement and the Issuing and Paying Agency Agreement have has been duly authorized, and validly executed and delivered by the Issuer and constitute legal, constitutes the valid and legally binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their terms, its terms and conditions (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and by general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at lawprinciples).
2.3 (c) The Notes have been Issued Shares issued and delivered to Xxxxxxxx pursuant to the terms of this Agreement will be, upon issuance, duly authorized, validly issued, fully paid and when issued as provided in nonassessable, and, other than pursuant to the Issuing Shareholders’ Agreement, the Registration Agreement and Paying Agency AgreementIssuer’s articles of incorporation or restrictions on transfer under applicable law, will be duly free and validly issued clear of all liens, preemptive rights and will constitute legal, valid and binding obligations of encumbrances created by or arising through the Issuer enforceable against with respect to the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law)issue thereof.
2.4 The offer (d) Neither the execution and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and nor the Issuing and Paying Agency Agreement, and the issuance consummation of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require violate any Governmental Approval relating law or other restriction of any governmental entity to the which Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effectis subject, (ii) violate conflict with or result in a breach of any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effectprovision of Issuer’s articles of incorporation or bylaws, or (iii) conflict with, result in a breach of or of, constitute a default under the articles (or an event which with notice or lapse of incorporation time or bylaws of the Issuer, (ivboth would become a default) conflict withunder, result in a breach the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any notice, or result in the imposition or creation of any lien or constitute a default any other encumbrance on Issuer under any indenturematerial agreement, agreement contract, lease, license, instrument, or other instrument arrangement to which the Issuer is a party or by which it is bound or to which any of its properties or assets is subject. Issuer is not required to give any notice to, make any filing with or obtain any authorization, consent or approval of any governmental entity or other Person in order for the Parties to enter into this Agreement or to consummate the transactions contemplated hereby, except for notice requirements under applicable securities laws and except as may be bound necessary as a result of any facts or any Governmental Approval circumstances relating solely to Xxxxxxxx.
(e) The capitalization of Issuer consists of 15,000,000 authorized shares of common stock, par value $0.01 per share (“Common Stock”), and 5,000,000 authorized shares of preferred stock, par value $0.01 per share. As of immediately prior to the Closing, 10,000,571 shares of Common Stock and no shares of preferred stock are issued and outstanding. Except as set forth in the first and second sentence of this Section 2(e), and except for outstanding warrants to purchase 309,296 shares of Common Stock, outstanding options to purchase 515,493 shares of Common Stock and an additional 630,048 shares of Common Stock reserved for issuance pursuant to awards under Issuer’s 2012 Equity Incentive Plan, there are no (x) shares of capital stock or other equity securities or voting securities of Issuer, which (y) securities of Issuer convertible into or exchangeable for shares of capital stock or other equity securities or voting securities of Issuer, or (z) outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights or, other than the Shareholders’ Agreement and the Registration Agreement, other contracts or commitments that could reasonably require Issuer to issue, sell or otherwise cause to become outstanding, or to register, any equity securities of Issuer.
(f) Assuming the truth and accuracy of the representations and warranties of Xxxxxxxx set forth in Sections 3(b)-(h), the offering and issuance by Issuer of the Issued Shares shall be expected to have exempt from registration under the United States Securities Act of 1933, as amended (the “Securities Act”) and the Issued Shares will not be issued in violation of the Securities Act.
(g) Issuer is not a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect party to any property now owned contract, agreement or hereafter acquired by the understanding with any Person that would give rise to any claim against Issuer for a brokerage commission, finder’s fee or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required like payment in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effecttransactions contemplated hereby.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the all requisite corporate power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 authorizedand validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorized this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Stock Option Agreement, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by the Issuer and, assuming this Stock Option Agreement has been duly executed and constitute legaldelivered by Grantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally; the availability of injunctive relief and other equitable remedies remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(regardless c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of whether enforcement is sought in this Stock Option Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, a proceeding in equity sufficient number of authorized shares of Issuer Common Stock for issuance upon exercise of the Option, each of which shares, upon issuance pursuant to this Stock Option Agreement and when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances and security interests (other than those imposed by Grantee, its affiliates or at lawby Applicable 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2d) thereof, 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 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 The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby hereby, except as required by the HSR Act and thereby any material foreign competition authorities (if applicable), and, with respect to Section 4 hereof, compliance with the provisions of the Act and any applicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, or constitute a default under, any term, condition or provision of the giving Certificate of notice Incorporation or otherwisebylaws, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such Governmental Approval consents, waivers, approvals, licenses or authorizations or where such acceleration or defaults could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority materially and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effectadversely affect Grantee's rights hereunder.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority to own its properties and enter into this Agreement and, subject to carry on its business as now being and hereafter proposed any approvals or consents referred to be conducted and is duly qualified and authorized herein, to do business in each jurisdiction in which consummate the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effecttransactions contemplated hereby. The Issuer has all the requisite power execution 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Issuer. This Agreement has been duly executed and Paying Agency delivered by Issuer. The execution and delivery of this Agreement, and the issuance consummation of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do compliance by Issuer with any of the provisions hereof will not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, with or result in a breach of any provision of its Certificate of Incorporation or constitute Bylaws or a default (or give rise to any right of termination, cancellation or acceleration) under the articles of incorporation or bylaws any of the Issuerterms, (iv) conflict withcondition or provisions of any note, result in a breach of or constitute a default under any bond, debenture, mortgage, indenture, license, material agreement or other instrument material
(b) Issuer has taken all necessary corporate and other action to authorize and reserve and to permit it to issue, and, at all times from the date hereof until the obligation to deliver Issuer Common Stock upon the exercise of the Option terminates, will have reserved for issuance, upon exercise of the Option, the number of shares of Issuer Common Stock necessary for Holder to exercise the Option, and Issuer will take all necessary corporate action to authorize and reserve for issuance all additional shares of Issuer Common Stock or other securities which the Issuer is a party or by which any of its properties may be bound issued pursuant to Section 7 upon exercise of the Option. The shares of Issuer Common Stock to be issued upon due exercise of the Option, including all additional shares of Issuer Common Stock or any Governmental Approval relating other securities which may be issuable pursuant to the IssuerSection 7, which could reasonably upon issuance pursuant hereto, shall be expected to have a Material Adverse Effectduly and validly issued, (v) result in or require the creation or imposition fully paid, and nonassessable, and shall be delivered free and clear of all liens, claims, charges, and encumbrances of any Lien upon kind or with respect to nature whatsoever, including any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent preemptive rights of any other Person is required in connection with the execution, delivery, performance, validity or enforceability stockholder of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectIssuer.
2.8 (c) The authorized capital stock of Issuer consists of (i) 60,000,000 shares of Gator Common Stock, of which 40,696,097 shares are issued and outstanding at this date, and (ii) 1,000,000 shares of Gator Preferred Stock, none of which are issued and outstanding. Except for matters as disclosed in any filings made by Section 6.3(b) of the Issuer with the SECGator Disclosure Memorandum, there are no actions, suits or proceedings pending nor, other equity securities of Gator outstanding and no outstanding Equity Rights relating to the knowledge capital stock of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse EffectGator.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Samples: Stock Option Agreement (Gulf South Medical Supply Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as otherwise disclosed in any filings made by the Issuer with in the SECCompany Information (as defined below), there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which is reasonably likely to result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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) sale and 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 and time thereof, that, both before and after giving effect to such sale and 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 on and as of such date as if made on and as of such datedate and at such time, and (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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), ) and (iii) in the case of an issuance or sale of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer Issuer, with respect to Sections 2.1 through 2.10, and each of the Guarantors, with respect to Sections 2.11 through 2.17, represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or event of default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 of the Guarantors 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 respective obligations under the Guarantees, this Agreement and the Issuing and Paying Agency Agreement.
2.12 This Agreement, the Issuing and Paying Agency Agreement and the Guarantees have been duly authorized, executed and delivered by each of the Guarantors and constitute legal, valid and binding obligations of the Guarantors enforceable against the Guarantors 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.
2.13 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 by the Guarantors of, this Agreement, the Guarantees 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.
2.14 Neither the execution and delivery by the Guarantors of this Agreement, the Issuing and Paying Agency Agreement and the Guarantees, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by each of the Guarantors, 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 Guarantors, or (ii) violate or result in a breach or an event of default under any of the terms of the Guarantors' charter documents or by-laws, any contract or instrument to which each of the Guarantors 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 each of the Guarantors is subject or by which it or its property is bound, which breach or event of default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of each of the Guarantors or the ability of either Guarantor to perform its obligations under this Agreement, the Guarantees or the Issuing and Paying Agency Agreement.
2.15 Neither of the Guarantors is an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
2.16 The information concerning the Guarantors contained in the Private Placement Memorandum does not contain any untrue statement of a material fact 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.
2.17 The Guarantees do not require registration under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof.
2.18 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 each of the Issuer and the Guarantors (as to itself) 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.effect
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of Issuer. The Issuer represents and ---------------------------------------- warrants to, and agrees with, each Underwriter that:
2.1 The Issuer (a) It is a corporation Delaware [limited liability company] [business trust], duly organized, organized and validly existing and in good standing under the laws of its jurisdiction the State of incorporationDelaware, has the with full power and authority to own its properties and to carry on conduct its business as now being currently operated, and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Underwriting Agreement and the Issuing Indenture and Paying Agency Agreementit is conducting its manufactured housing business so as to comply in all material respects with all applicable statutes, ordinances, rules and regulations of the jurisdictions in which it is conducting such business and where the failure to so comply would have a material adverse effect on the transactions contemplated hereunder or its ability to perform its obligations under the Indenture.
2.2 This (b) At or prior to the Closing Date, it will have entered into the Indenture; it has duly authorized, executed and delivered this Underwriting Agreement and the Issuing Indenture; when delivered by the Issuer, this Underwriting Agreement and Paying Agency Agreement the Indenture will have been duly authorized, executed and delivered by the Issuer it and will constitute legal, a valid and binding obligations agreements of the Issuer Issuer, enforceable against the Issuer it in accordance with their its terms, except as such that the enforceability thereof may be limited by subject to: (i) bankruptcy, insolvency, reorganization, moratorium or other similar state laws now or federal debtor relief laws from time to time hereafter in effect which affect the enforcement relating to creditors' rights generally; (ii) general principles of creditors’ rights in general and the availability of equitable remedies (equity regardless of whether enforcement is sought in a proceeding in of equity or at law); and (iii) limitations of public policy under applicable securities laws as such relate to the enforceability of rights to indemnity under the Indenture or this Underwriting Agreement.
2.3 (c) The Notes have been duly authorized, and when issued as provided the Indenture conform in all material respects to the descriptions thereof contained in the Issuing and Paying Agency AgreementProspectus. As of the Closing Date, the Offered Notes will be duly and validly issued executed and will constitute legaldelivered by it, valid and binding obligations of will, when duly and validly authenticated by the Issuer enforceable against the Issuer Indenture Trustee and delivered to you in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Underwriting Agreement and the Issuing Indenture, be entitled to the benefits of the Indenture.
(d) As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424 under the Act, when, after the date hereof and Paying Agency Agreementprior to the Closing Date (as defined in Schedule II hereto), any amendment to the Registration Statement becomes effective, when any supplement to the Prospectus Supplement is filed with the Commission, and at the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwiseClosing Date, (i) require the Registration Statement, as amended as of any Governmental Approval relating such time, and the Prospectus, as amended or supplemented as of any such time, each with regard to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default those sections under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating captions pertaining to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result complied or will comply in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection all material respects with the executionapplicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, deliveryas amended, performance, validity or enforceability of this Agreement, with regard to those sections under the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure captions pertaining to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator as of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is such time, did not 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 and will not contain any untrue statement of a material fact or omits and did not and will not omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, it makes no -------- ------- representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto made in reliance upon and in conformity with written information furnished to the Issuer by you, or by any Underwriter through you, specifically for use in the preparation thereof.
2.11 Each (ae) Neither it nor the Trust Fund is, and neither the issuance and sale of the Notes by nor the activities of the Trust Fund pursuant to the Indenture will cause the Issuer hereunder and (b) amendment or supplement the Trust Fund to be an "investment company" or under the control of an "investment company" as such terms are defined in the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the DealerInvestment Company Act of 1940, 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectamended.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer Issuer, with respect to Sections 2.1 through 2.10, and each of the Guarantors, with respect to Sections 2.11 through 2.17, represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or event of default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 of the Guarantors 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 respective obligations under the Guarantees, this Agreement and the Issuing and Paying Agency Agreement.
2.12 This Agreement, the Issuing and Paying Agency Agreement and the Guarantees have been duly authorized, executed and delivered by each of the Guarantors and constitute legal, valid and binding obligations of the Guarantors enforceable against the Guarantors 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.
2.13 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 by the Guarantors of, this Agreement, the Guarantees 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.
2.14 Neither the execution and delivery by the Guarantors of this Agreement, the Issuing and Paying Agency Agreement and the Guarantees, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by each of the Guarantors, 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 Guarantors, or (ii) violate or result in a breach or an event of default under any of the terms of the Guarantors' charter documents or by-laws, any contract or instrument to which each of the Guarantors 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 each of the Guarantors is subject or by which it or its property is bound, which breach or event of default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of each of the Guarantors or the ability of either Guarantor to perform its obligations under this Agreement, the Guarantees or the Issuing and Paying Agency Agreement.
2.15 Neither of the Guarantors is an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
2.16 The information concerning the Guarantors contained in the Private Placement Memorandum does not contain any untrue statement of a material fact 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.
2.17 The Guarantees do not require registration under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof.
2.18 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 each of the Issuer and the Guarantors (as to itself) 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 and the Guarantors set forth above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer whichor the Guarantors which would impact the ability of the Issuer or either of the Guarantors to perform its obligations under the Notes or the Guarantees, if not publicly availableas the case may be, and which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of Issuer. The Issuer Issuer, with respect to Sections 2.1 through 2.10, and each of the Guarantors, with respect to Sections 2.11 through 2.17, represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or event of default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe 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 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 of the Guarantors 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 respective obligations under the Guarantees, this Agreement and the Issuing and Paying Agency Agreement.
2.12 This Agreement, the Issuing and Paying Agency Agreement and the Guarantees have been duly authorized, executed and delivered by each of the Guarantors and constitute legal, valid and binding obligations of the Guarantors enforceable against the Guarantors 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.
2.13 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 by the Guarantors of, this Agreement, the Guarantees 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.
2.14 Neither the execution and delivery by the Guarantors of this Agreement, the Issuing and Paying Agency Agreement and the Guarantees, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by each of the Guarantors, 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 Guarantors, or (ii) violate or result in a breach or an event of default under any of the terms of the Guarantors' charter documents or by-laws, any contract or instrument to which each of the Guarantors 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 each of the Guarantors is subject or by which it or its property is bound, which breach or event of default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of each of the Guarantors or the ability of either Guarantor to perform its obligations under this Agreement, the Guarantees or the Issuing and Paying Agency Agreement.
2.15 Neither of the Guarantors is an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
2.16 The information concerning the Guarantors contained in the Private Placement Memorandum does not contain any untrue statement of a material fact 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.
2.17 The Guarantees do not require registration under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof.
2.18 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 each of the Issuer and the Guarantors (as to itself) 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.and
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 (i) 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 (ii) as provided in Section 1.6(j) hereof.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default, in each case, could reasonably be expected to have a Material Adverse Effect, (v) result in material adverse effect on the financial condition or require the creation or imposition results of any Lien upon or with respect to any property now owned or hereafter acquired by operations of the Issuer and its subsidiaries taken as a whole or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the financial condition or before any arbitrator results of any kind operations of the Issuer and its subsidiaries taken as a whole or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or results of operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatas of the date of initial issuance of Notes as follows:
2.1 (a) The Issuer is a corporation business trust, and is duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. Delaware.
(b) The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement when executed, authenticated 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective termsIndenture, and the transactions contemplated hereby and thereby do not and will not, by Basic Documents (other than the passage of time, the giving of notice or otherwise, (iNotes) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or party, when executed and delivered by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require will constitute the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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 termsrespective terms against the Issuer, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance or other similar state laws relating to or federal debtor relief laws from time affecting creditors' equitable principles and public policy considerations as to time rights of indemnification.
(c) The Issuer's principal place of business (which is its only place of business) is located in effect which affect Wilmington, Delaware.
(d) The Issuer has good and marketable title to each Loan and Mortgage Note free and clear of any lien (other than liens contemplated by the enforcement of creditors’ rights in general Basic Documents) and the availability Issuer has the authority to pledge the Loans and Mortgage Notes to the Trustee as contemplated in this Indenture.
(e) The Issuer has the power and authority to own and convey all of equitable remedies its properties and to execute and perform its obligations under the Basic Documents.
(regardless of whether enforcement is sought in a proceeding in equity or at law), (iiif) 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 or operations The transactions contemplated hereby do not violate organizational documents of the Issuer whichor any contracts to which the Issuer is a party and will not create any claim upon the issuer, if not publicly availablethe Loans or the Mortgage Notes except as contemplated by the Indenture.
(g) The Basic Documents have been duly executed and delivered by the Issuer.
(h) No consent, filing or governmental approval that has not been disclosed made or obtained as of the Closing Date is necessary for the due execution, delivery and performance of the Basic Documents by the Issuer.
(i) There is no pending or threatened action, suit or proceeding against the Issuer which in any way would adversely affect the transactions contemplated hereby and there is no injunction, writ, restraining order or other order of any nature which would adversely affect Issuer's performance of the transactions contemplated hereby.
(j) The Issuer is in compliance with all applicable laws, rules, regulations, and orders with regard to its business, properties and all purchased assets.
(k) The Issuer has filed all required tax returns in a timely fashion.
(l) The Issuer is solvent and will not become insolvent after giving effect to the Dealer in writing and (iv) transactions contemplated hereby; the Issuer is not in default under any adequately capitalized to carry out its business and will continue to be adequately capitalized after giving effect to the transactions contemplated hereby; and the Issuer pays its debts as they become due.
(m) The legal name of its obligations hereunderthe Issuer is The Money Store Business Loan Backed Trust 1999-1 and the Issuer has no trade names, under the Issuing and Paying Agency Agreement fictitious names, assumed names, or the Notes that is reasonably likely to result in a Material Adverse Effect'doing business as' names.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 and validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorize this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Stock Option Agreement, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by Issuer and, assuming this Stock Option Agreement has been duly and validly authorized, executed and delivered by the Issuer and constitute legalGrantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized(c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and when issued as provided in at all times from the Issuing date of this Stock Option Agreement through the Expiration Date will have reserved for issuance upon exercise of the Option a number of authorized and Paying Agency Agreement, will be duly and validly unissued shares of Issuer Common Stock equal to 19.9% of the number of shares of Issuer Common Stock issued and will constitute legal, valid and binding obligations outstanding on the date of the Issuer enforceable against the Issuer in accordance with their terms, except as this Stock Option Agreement (or such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 number as may be required by the securities or Blue Sky laws pursuant to Section 10 hereof), each of the various states in connection with the offer which, upon issuance pursuant to this Stock Option Agreement and sale when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of the Notesall claims, liens, charges, encumbrances and security interests and not subject to any preemptive rights.
2.7 (d) The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby except as required by the HSR Act (if applicable), and, with respect to Section 4, compliance with the provisions of the Securities Act and thereby any applicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, the giving or constitute a default under, any term, condition or provision of notice any charter or otherwisebylaw, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such Governmental Approval consents, waivers, approvals, licenses or authorizations or where such acceleration or defaults could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Effect on Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of Issuer. The In order to induce the Trustee to enter into this Limited Waiver and Second Supplemental Indenture, the Issuer hereby represents and warrants that:
2.1 (a) The Issuer is a corporation duly organized, port authority and body corporate and politic validly existing and in good standing under the laws of its jurisdiction of incorporation, the State.
(b) The Issuer has the necessary power under the Act and authority has duly taken all action on its part required to own its properties execute and deliver this Limited Waiver and Second Supplemental Indenture, to undertake the transactions contemplated by this Limited Waiver and Second Supplemental Indenture and to carry on out its business as now being obligations hereunder.
(c) Neither the execution and hereafter proposed to be conducted delivery of this Limited Waiver and is duly qualified Second Supplemental Indenture, the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the provisions of this Limited Waiver and authorized to do business in each jurisdiction in which the character of its properties Second Supplemental Indenture will conflict with or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The breach by the Issuer of any of the terms, conditions or provisions of the Act or any restriction, agreement, instrument, order or judgment to which the Issuer is a party or by which it is bound, or will constitute a default by the Issuer under any of the foregoing.
(d) Pursuant to a Resolution Authorizing Limited Waiver and Supplemental Indenture, and Authorizing and Approving Related Matters passed by its Board of Directors (the “Amending Resolution”) on November 7, 2023, the Issuer has all duly authorized the requisite power execution and authority to execute, deliver delivery of this Limited Waiver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency AgreementSecond Supplemental Indenture.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been (e) When duly authorized, executed and delivered on behalf of the Issuer, and assuming the due authorization, execution and delivery by the Issuer other parties hereto, this Limited Waiver and Second Supplemental Indenture shall constitute legal, a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms; provided, except as such that the enforceability of this Limited Waiver and Second Supplemental Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state other laws relating to or federal debtor relief laws from time to time in effect which affect the enforcement of limiting creditors’ rights in general generally and the availability application of equitable remedies (regardless general principles of whether enforcement is sought in a proceeding in equity or at law)equity.
2.3 The Notes have been duly authorized(f) To the best knowledge of the Issuer, as of this date, there is no action, suit or proceeding at law or in equity, pending or threatened against the Issuer to restrain or enjoin the execution and when issued as provided delivery of this Limited Waiver and Second Supplemental Indenture or in any way contesting the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations validity or affecting the power of the Issuer enforceable against with respect to the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium documents or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes instruments executed by the Issuer in connection herewith or the manner contemplated hereby do not require registration existence of the Notes under Issuer or the Securities Act, pursuant to power or the exemption from registration contained in Section 4(a)(2) thereof, and no indenture in respect right of the Notes is required Issuer to be qualified under the Trust Indenture Act of 1939, as amendedenter into this Limited Waiver and Second Supplemental Indenture.
2.5 (g) The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
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 Notes.
2.7 The execution, delivery and performance Amending Resolution was duly passed by the Issuer at a public meeting of this Agreement the Board of Directors of the Issuer held in accordance with all applicable laws and the Issuing at which a quorum was present and Paying Agency Agreementacting throughout, and the issuance Amending Resolution remains in full force and effect and has not been repealed, amended, modified or superseded.
(h) Except for the Specified Event of Default, the Notes in accordance Issuer has no knowledge of (i) any existing Event of Default under the Indenture, or (ii) any event, fact or circumstance that, with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwiseboth, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach constitute an Event of or constitute a default Default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectIndenture.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Samples: Limited Waiver and Second Supplemental Indenture (PureCycle Technologies, Inc.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except insofar as rights to indemnification and contribution may be limited by applicable 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Except as provided in Section 1.6(j), 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.by
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (National Service Industries Inc)
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, limited partnership validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its formation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 (a) 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 (b) filings with the SEC under the Exchange Act in connection with the entry into the Agreement.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition, operations or 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.
2.9 The Issuer is not 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 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 of the Issuer nor any of its subsidiaries, nor, to the knowledge of the Issuer, any director, officer, employee or affiliate of the Issuer or any of its subsidiaries is the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”); neither the Issuer nor any of its subsidiaries is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.
2.12 No part of the proceeds of the Notes will be used, directly or, to the knowledge of the Issuer, indirectly, (i) to fund or finance any activities or business of or with any Person or vessel, or in any country or territory, that, at the time of such funding or financing, is, or whose government is, the subject of Sanctions if such activities or business would be prohibited for a U.S. Person pursuant to Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by the Issuer or any of its subsidiaries or any other party to this Agreement.
2.13 The Issuer and its subsidiaries are in compliance with all applicable anti-corruption laws, including the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), except for such non-compliance that could not, based upon the facts and circumstances existing at the time, reasonably be expected to (x) result in a material adverse effect on the financial condition, operations, or properties of the Issuer and its subsidiaries, taken as a whole (a “Material Adverse Effect”), (y) result in material liability to any Dealer or the Issuing and Paying Agent, or (z) materially and adversely affect the ability of the Issuer to perform its obligations under this Agreement, the Issuing and Paying Agent Agreement or the Notes. The Issuer has instituted and maintains policies and procedures reasonably designed to promote compliance with the FCPA and all other applicable anti-corruption laws, and each of the Issuer and its subsidiaries adheres to such policies and procedures. No part of the proceeds of the Notes will be used, directly or, to the knowledge of the Issuer, indirectly, in violation of the FCPA or any other applicable anti-corruption law, including for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA or any other applicable anticorruption law.
2.14 To the extent applicable, each of the Issuer and its subsidiaries are in compliance with the Bank Secrecy Act, as amended by Title III of the USA PATRIOT Act, and all other applicable anti-money laundering and counter-terrorist financing laws and regulations, except for such non-compliance that could not, based on the facts and circumstances existing at the time, reasonably be expected to (x) result in a Material Adverse Effect, (y) result in material liability to any Dealer or the Issuing and Paying Agent, or (z) materially and adversely affect the ability of the Issuer to perform its obligations under this Agreement, the Issuing and Paying Agent Agreement or the Notes.
2.15 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum prepared or approved by the Issuer prior to use 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition, operations or operations business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) or made publicly available by the Issuer is not in default under any of its obligations hereunder, under on the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectSEC’s XXXXX system.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Williams Partners L.P.)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 Information, contains any untrue statement of a material fact or omits 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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.
(1) If the form or forms of Notes are not annexed to the Issuing and Paying Agency Agreement, they should be annexed to this Agreement or delivered to the Dealer, with appropriate certification by the Secretary of the Issuer, pursuant to section 3.6 of this 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer in the manner contemplated hereby do are not require registration of the Notes required to be registered under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(23(a)(3) thereof, 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 ; and the Notes are and will be rated as "prime quality" commercial paper by at least one nationally recognized statistical rating organization and will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 2.5 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 The execution, 2.6 Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC2.7 There is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 2.8 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 2.9 Neither the Private Placement Memorandum Offering Materials nor the Company Information contains any untrue statement of a material fact 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 2.10 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum Offering Materials 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity inequity or at law), (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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing existing, and in good standing under the laws of its jurisdiction the State of incorporation, Michigan and has the requisite corporate power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 This (b) The execution and delivery of this Agreement by Issuer and the Issuing consummation by Issuer of the transactions contemplated hereby, including the issuance and Paying Agency Agreement sale of the Option Shares, have been duly authorizedand validly authorized by the Board of Directors of Issuer, and no other corporate proceedings on the part of Issuer are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Issuer and, assuming this Agreement has been duly and constitute legalvalidly authorized, executed, and delivered by Grantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally, the availability of injunctive relief and other equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law)remedies, and limitations imposed by law on indemnification for liability under federal securities laws.
2.3 The Notes have been duly authorized(c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of this Agreement through the date of termination of the Option will have reserved for issuance upon exercise of the Option, such number of authorized shares of Issuer Common Stock as is equal to the number of Option Shares and will take all necessary action to authorize and reserve for issuance all shares of Issuer Common Stock or other securities which may be issuable pursuant to Section 10 upon exercise of the Option, each of which, upon issuance pursuant to this Agreement and when issued paid for as provided in the Issuing and Paying Agency Agreementherein, will be duly validly issued, fully paid, and validly issued nonassessable, and will constitute legalshall be delivered free and clear of all claims, valid liens, charges, encumbrances, and binding obligations security interests and not subject to any preemptive rights.
(d) The execution, delivery, and performance of this Agreement by Issuer and the consummation by it of the Issuer enforceable against the Issuer in accordance with their termstransactions contemplated hereby, except as such enforceability may be limited required by bankruptcythe HSR Act (if applicable), insolvencyand, reorganizationwith respect to Section 4, moratorium or similar state or federal debtor relief laws from time to time in effect which affect compliance with the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale provisions of the Notes by the Issuer in the manner contemplated hereby Securities Act and any applicable state securities laws, do not require registration of the Notes under the Securities Actconsent, pursuant to the exemption from registration contained in Section 4(a)(2) thereofwaiver, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939approval, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No consent or action oflicense, or filing authorization of or registration withresult in the acceleration of any obligation under, or constitute a default under, any governmental or public regulatory body or authorityterm, including the SEC, is required to authorizecondition, or provision of any charter or bylaw, or any indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation, or decree or any restriction to which Issuer or any property of Issuer or its subsidiaries is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreementbound, 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could consents, waivers, approvals, licenses, or authorizations or where such acceleration or defaults would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Company Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 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, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except insofar as rights to indemnifications and contributions may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by terms subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 No Except as provided in Section 1.6(j), no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained by the Issuer to authorize, or is otherwise required to be obtained by the Issuer 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be property is bound or any Governmental Approval relating and that is material to the Issuer, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which could the Issuer is subject or by which it or its property is bound, which violation, breach or event of default might reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the earnings, (v) result in business or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which might reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the earnings, business 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 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 relating 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, (ii.) the representations and warranties given by the Issuer set forth above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 earnings, business or operations of the Issuer which, if not publicly available, which has not been disclosed to in the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectCompany Information.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents represents, warrants and warrants thatcovenants for the benefit of Lender and Borrower, as follows:
2.1 The (a) Issuer is a corporation duly organized, validly joint powers agency organized and existing and in good standing under by virtue of the laws of the State.
(b) Issuer will exercise its jurisdiction of incorporation, has the power best efforts to preserve and authority to own keep in full force and effect its properties and to carry on its business existence as now being and hereafter proposed to be conducted and a joint powers agency.
(c) Issuer is duly qualified and authorized to do business in each jurisdiction in which enter into this Agreement, the character of its properties or Escrow Agreement, the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Tax Compliance Agreement and the Issuing transactions contemplated hereby and Paying Agency Agreementto perform all of its obligations hereunder.
2.2 This (d) Issuer has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and the Issuing Tax Compliance Agreement by a resolution adopted by its Commission, and Paying Agency Agreement all requirements have been duly authorizedmet and procedures have occurred in order to ensure the enforceability of this Agreement, executed the Escrow Agreement and delivered the Tax Compliance Agreement against Issuer. Issuer has taken all necessary action and has complied with all provisions of the Act, including the making of the findings required by the Act, required to make this Agreement, the Escrow Agreement and the Tax Compliance Agreement the valid and binding obligation of Issuer.
(e) The authorized Commission member of Issuer executing this Agreement, the Escrow Agreement, the Tax Compliance Agreement and constitute any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Tax Compliance Agreement and the related documents by a resolution of the Commission of Issuer, or by other appropriate official action.
(f) This Agreement, the Escrow Agreement and the Tax Compliance Agreement are legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their respective terms, except as such enforceability may be to the extent limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar state or federal debtor relief laws from time other Laws of general application relating to time in effect which affect the enforcement of creditors’ ' rights, the application of equitable principles, and to the limitations on enforcement remedies against public entities in California.
(g) Issuer has assigned to Lender all of Issuer's rights in general the Equipment and this Agreement (except for the availability right to receive any Additional Payments to the extent payable to Issuer, any rights of equitable remedies (regardless Issuer to indemnification and rights of whether enforcement is sought notice, inspection and consent), including the assignment of all rights in a proceeding in equity or at law)the security interest granted to Issuer by Borrower.
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 (h) Issuer has not and will constitute legalnot pledge, valid mortgage or assign this Agreement or its duties and binding obligations of the Issuer enforceable against the Issuer in accordance with their termshereunder to any person, firm or corporation, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect provided under the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law)terms hereof.
2.4 The offer and sale (i) None of the Notes by the Issuer in the manner contemplated hereby do not require registration execution and delivery of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, 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 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 Escrow Agreement or the Issuing and Paying Agency Tax Compliance Agreement, except as may be required by the securities or Blue Sky laws consummation of the various states in connection with the offer and sale of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby or thereby or the fulfillment of or compliance with the terms and thereby do not and will not, by the passage conditions of timethis Agreement, the giving of notice Escrow Agreement or otherwisethe Tax Compliance Agreement violates any Law, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result conflicts with or results in a breach of or constitute a default under the articles of incorporation or bylaws any of the Issuerterms, (iv) conflict with, result in a breach conditions or provisions of any restriction or constitute a default under any indenture, agreement or other instrument to which the Issuer is now a party or by which it is bound or constitutes a default under any of its properties may be bound the foregoing or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result results in or require the creation or imposition of any prohibited Lien upon any of the property or with respect to any property now owned or hereafter acquired by assets of Issuer under the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent terms of any instrument or agreement.
(j) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Issuer's knowledge, threatened against or affecting Issuer, challenging Issuer's authority to enter into this Agreement, the Escrow Agreement or the Tax Compliance Agreement or any other Person is required in connection with action wherein an unfavorable ruling or finding would adversely affect the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Escrow Agreement or the Notes that Tax Compliance Agreement or any other transaction of Issuer which is reasonably likely to result similar hereto, or the exclusion of the interest on the Tax-Exempt Note from gross income for federal income tax purposes under the Code, or would materially and adversely affect any of the transactions contemplated by this Agreement.
(k) No member, officer or other official of Issuer has any financial interest whatsoever in a Material Adverse EffectBorrower or in the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents and warrants thatto the Dealer:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power 6 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (At&t Wireless Services Inc)
Representations and Warranties of 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 its jurisdiction of incorporation, has the power New York and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement Agreement, and the Issuing and Paying Agency Agreement.
2.2 This Each of this Agreement and the Issuing and Paying Agency Agreement have has been duly authorized, executed and delivered by the Issuer and constitute constitutes the legal, valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganizationfraudulent conveyance reorganization and similar laws affecting creditors' rights generally, moratorium or similar state or federal debtor relief laws from time and subject, as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued issued, delivered and paid for as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency fraudulent conveyance reorganization and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 by the Issuer 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach or an event of or constitute a default under any of (a) the articles of incorporation or bylaws terms of the Issuer's charter documents or by-laws, (ivb) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which it or its property is bound, or (c) any of its properties may be bound law or regulation, or any Governmental Approval relating 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, in the case of (i) and (ii)(b) and (c), would have a material adverse effect on the condition, financial or otherwise, or the earnings or business affairs of the Issuer, which could reasonably be expected to have a Material Adverse Effectthe validity of the Notes, (v) result in or require the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which is reasonably be expected likely to have a Material Adverse Effectmaterial adverse effect on the condition, financial or otherwise, or the earnings or business affairs 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 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. The foregoing representation shall not apply to Agent 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 DealerAgents, 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) the Issuer is not in default of any of its obligations hereunder, under the Notes, or under the Issuing and Paying Agency Agreement, (iv) 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 and no development which will result in a prospective material adverse change in the condition, financial condition or operations otherwise, or in the earnings or business affairs of the Issuer which, if whether or not publicly available, arising in the ordinary course of business which has not been disclosed to the Dealer each Agent in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Private Placement Agreement (Arrow Electronics Inc)
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, has the power Delaware and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as rights under this Agreement to indemnity and contribution may be limited by federal or state 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, except as such enforceability may be limited by in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 NotesNotes and except for the filing of any Current Report on Form 8-K with the SEC as may be required under the Exchange Act regarding any of the foregoing.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s organizational documents, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effect, material adverse effect on the condition (vfinancial or otherwise) result in or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have a Material Adverse Effectmaterial 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 Agent Agreement.
2.9 The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum (excluding the Dealer Information) nor the Company Information contains any untrue statement of a material fact 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 Since August 19, 2011, neither the Issuer nor any of its subsidiaries, directors or officers, nor, to the knowledge of the Issuer, any agent, employee, representative or affiliate or other person acting on behalf of the Issuer or any of its subsidiaries or affiliates (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official or employee of, or candidate for, any federal, state or foreign government office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) has taken any action, directly or indirectly, in violation of the U.S. Foreign Corrupt Practices Act of 1977 or the U.K. Xxxxxxx Xxx 0000, each as may be amended, or the rules or regulations thereunder, or any applicable similar anti-corruption law, rule or regulation of any other relevant jurisdiction (collectively, "Anti-Corruption Laws"); to the actual knowledge of the Issuer after due inquiry, the Issuer, its subsidiaries and affiliates have each conducted their businesses in compliance with Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith; and no part of the proceeds of the Notes will be used, directly or indirectly, in violation of any Anti-Corruption Law.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance 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 (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 actual knowledge of the Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor any director or officer, nor, to the knowledge of the Issuer, any agent, employee, representative or affiliate of the Issuer or any of its subsidiaries (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced 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), the United Nations Security Council, the European Union, a member state of the European Union (including sanctions administered or enforced by Her Majesty's Treasury of the United Kingdom) or other relevant sanctions authority (collectively, "Sanctions" and such persons, "Sanctioned Persons" and each such person, a "Sanctioned Person"); (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (collectively, "Sanctioned Countries" and each, a "Sanctioned Country"); or (iii) 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 individual or entity (x) to fund or facilitate any activities or business of or with any Sanctioned Person or vessel that is the subject of Sanctions or in any Sanctioned Country, at the time of such funding or facilitation, or (y) in any manner that would result in a violation of any Sanctions by, or could 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 Neither the Issuer nor any of its subsidiaries or affiliates has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, since August 19, 2013, nor does the Issuer or any of its subsidiaries or affiliates have any plans to increase its dealings or transactions, or commence any dealing or transaction, with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country.
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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Energy Transfer Partners, L.P.)
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer (i) is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of its incorporation, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could would not be reasonably expected to result in have a Material Adverse Effect. The material adverse effect on the business, financial position, results of operations or prospects of the Issuer and its subsidiaries, taken as a whole, or on the performance by the Issuer of its obligations under the Notes, and (ii) 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 has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as such enforceability rights to indemnity and contribution may be limited by federal or state law.
2.3 The Issuing and Paying Agency Agreement has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 2.4 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 2.5 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 2.6 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 2.7 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 on the part of the Issuer 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 The execution, 2.8 Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, which mortgage, lien, charge or encumbrance would have a material adverse effect on the business, financial position, results of operations or prospects of the Issuer where and its subsidiaries, taken as a whole, or on the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effectperformance by the Issuer of its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under any of the articles terms of incorporation the charter documents or bylaws by-laws of the Issuer, (iv) conflict with, result in a breach of any contract or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to violation, breach or default would have a Material Adverse Effectmaterial adverse effect on the business, (v) result in financial position, results of operations or require the creation or imposition prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization ofand its subsidiaries, filing withtaken as a whole, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 2.9 Except for matters disclosed as may be described in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which would result in any court a material adverse change in the business, financial position, results of operations or before any arbitrator prospects of any kind the Issuer and its subsidiaries, taken as a whole, the ability of the Issuer to perform its obligations under this Agreement, the Notes or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 2.10 The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 2.11 Neither the Private Placement Memorandum nor the Company Information Information, in each case, taken as a whole, contains any untrue statement of a material fact 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 business, financial condition position, results of operations or operations prospects of the Issuer whichand its subsidiaries, if not publicly availabletaken as a whole, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Dr Pepper Snapple Group, Inc.)
Representations and Warranties of Issuer. The Issuer hereby represents and ---------------------------------------- warrants that:
2.1 The to Holder that Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority and has taken all corporate action necessary to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorizationauthorize, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and to consummate the Issuing transactions contemplated hereby; and Paying Agency Agreement.
2.2 This that this Agreement and the Issuing and Paying Agency Agreement have has been duly and validly authorized, executed and delivered by the Issuer. Issuer hereby further represents and constitute legal, valid warrants to Holder that it has taken all necessary corporate action to authorize and binding obligations reserve for issuance upon exercise of the Issuer enforceable against Option the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium number of shares of Common Stock equal to the maximum number of shares of Common Stock at any time or similar state or federal debtor relief laws from time to time in effect which affect issuable upon exercise of the enforcement Option and that all shares of creditors’ rights in general and Common Stock, upon issuance pursuant to the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency AgreementOption, will be duly delivered free and validly issued and will constitute legalclear of all claims, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their termsliens, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereofencumbrances, 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 security interests (other unsecured and unsubordinated indebtedness of the Issuer.
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 than those created by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 The execution, delivery and performance by the Issuer of this Agreement and the Issuing Securities Act) and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect subject to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority preemptive rights. The execution and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability delivery of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge grant of the Issuer, threatened against Option hereunder and the exercise in whole or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not an “investment company” within the meaning part of the Investment Company Act of 1940Option in accordance with this Agreement, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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, will 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) result in the representations occurrence of any "Distribution Date" or "Shares Acquisition Date" under the Preferred Shares Rights Agreement between Microcide Pharmaceuticals, Inc. and warranties given by the Issuer set forth in this Section 2 remain true and correct on and Chasemellon Shareholder Services, L.L.C. Rights Agent, dated as of such date as if made on and as of such dateFebruary 2, 1999, (ii) in the case permit any Person to exercise any rights issued under any rights agreements 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in cause the case separation of an issuance any such rights from the shares of NotesCommon Stock to which they are attached or such rights becoming exercisable. Issuer has taken all action necessary to make inapplicable to Grantee any state takeover, since the date business combination, control share or other similar statute and any charter provisions which would otherwise be applicable to Grantee or any transaction involving Issuer and Grantee by reason of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations grant of the Issuer whichOption, if not publicly availablethe acquisition of beneficial ownership of shares of Common Stock as a result of the grant of the Option, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectacquisition of shares of Common Stock upon exercise of the Option.
Appears in 1 contract
Samples: Stock Option Agreement (Microcide Pharmaceuticals Inc)
Representations and Warranties of Issuer. The Issuer represents and warrants thatthat each offer by the Issuer of Notes for purchase shall be deemed an affirmation by the Issuer that its representations and warranties set forth in this Article 2 are true and correct at the time of such acceptance:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the ability of the Issuer to perform its obligations under this Agreement, the Notes or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 The Issuer is not 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 Issuer Information contains any untrue statement of a material fact 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 and sale 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 and time thereof, that, both before and after giving effect to such issuance and sale 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 on and as of such date and time as if made on and as of such datedate and at such time, (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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance or sale of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, organized and validly existing and in good standing under the laws of its jurisdiction of incorporation, has the power Indiana and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require business of the creation Issuer, the validity of the Notes, or imposition the ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), operations or business 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, except as may be disclosed in the Private Placement Memorandum from time to time or as may be disclosed in the Company Information, from time to time, of which the Dealer has been specifically apprised.
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 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 DealerDealers, 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business of the Issuer which, if not publicly available, which has not been disclosed to the Dealer Dealers in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer represents and warrants that:
2.1 The Issuer is a corporation limited partnership duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, has the power Delaware and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as rights under this Agreement to indemnity and contribution may be limited by federal or state 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amendedAct.
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 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 for the filing of any Current Report on Form 8-K with the SEC as may be required under the Securities Act or the Exchange Act regarding any of the foregoing.
2.7 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s organizational documents, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effect, material adverse effect on the condition (vfinancial or otherwise) result in or require the creation or imposition operations of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SECThere is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or subsidiaries which could reasonably be expected to have a Material Adverse Effectmaterial 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.
2.9 The Issuer is not 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 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 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, legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 event which could reasonably be expected to have a material adverse change in effect on the condition (financial condition or otherwise) or operations of the Issuer which, if not publicly available, has not been disclosed to or the Dealer in writing and (iv) ability of the Issuer is not in default under any of to perform its obligations hereunderunder this Agreement, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely which has not been disclosed to result the Dealer in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Magellan Midstream Partners Lp)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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 duly
(1) If the form or forms of Notes are not annexed to the Issuing and Paying Agency Agreement, they should be annexed to this Agreement or delivered to the Dealer, with appropriate certification by the Secretary of the Issuer, pursuant to section 3.6 of this Agreement. 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer in the manner contemplated hereby do are not require registration of the Notes required to be registered under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(23(a)(3) thereof, 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 ; and the Notes are and will be rated as "prime quality" commercial paper by at least one nationally recognized statistical rating organization and will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 2.5 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 The execution, 2.6 Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgreement.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC2.7 There is no litigation or governmental proceeding pending, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying Agency Agreement.
2.9 2.8 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 2.9 Neither the Private Placement Memorandum Offering Materials nor the Company Information contains any untrue statement of a material fact 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 2.10 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum Offering Materials 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity inequity or at law), (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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectAgreement.
Appears in 1 contract
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation, Delaware and has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer has all the requisite power and authority to execute, deliver enter into and perform its obligations under the Notes, this Stock Option Agreement.
(b) The execution and delivery of this Stock Option 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 and validly authorized by the Board of Directors of Issuer and no other corporate proceedings on the part of Issuer are necessary to authorized this Stock Option Agreement or to consummate the transactions contemplated hereby. The Board of Directors of Issuer has duly approved the issuance and sale of the Option Shares, upon the terms and subject to the conditions contained in this Stock Option Agreement, and the consummation of the transactions contemplated hereby. This Stock Option Agreement has been duly and validly executed and delivered by Issuer and, assuming this Stock Option Agreement has been duly and validly authorized, executed and delivered by the Issuer and constitute legalGrantee, constitutes a valid and binding obligations obligation of the Issuer enforceable against the Issuer in accordance with their its terms, except as such enforceability may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or other similar state laws affecting or federal debtor relief laws from time relating to time in effect which affect the enforcement of creditors’ ' rights in general and generally; the availability of injunctive relief and other equitable remedies remedies; and limitations imposed by law on indemnification for liability under federal securities laws.
(regardless c) Issuer has taken all necessary action to authorize and reserve for issuance and to permit it to issue, and at all times from the date of whether enforcement is sought in this Stock Option Agreement through the date of expiration of the Option will have reserved for issuance upon exercise of the Option, a proceeding in equity sufficient number of authorized shares of Issuer Common Stock for issuance upon exercise of the Option, each of which, upon issuance pursuant to this Stock Option Agreement and when paid for as provided herein, will be validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, charges, encumbrances and security interests (other than those imposed by Grantee, its affiliate or at by applicable 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2d) thereof, 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 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 The execution, delivery and performance by the Issuer of this Stock Option Agreement by Issuer and the Issuing and Paying Agency Agreement, and the issuance consummation by it of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby except as required by the HSR Act and thereby any material foreign competition authorities (if applicable), and, with respect to Section 4 hereof, compliance with the provisions of the Act and any applicable state securities laws, do not and will notrequire the consent, by waiver, approval, license or authorization of or result in the passage acceleration of timeany obligation under, the giving or constitute a default under, any term, condition or provision of notice any charter or otherwisebylaw, (i) require or any Governmental Approval relating indenture, mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or decree or any restriction to the which Issuer or any property of Issuer or its subsidiaries is bound, except where the failure to obtain such Governmental Approval consents, waivers, approvals, licenses or authorizations or where such acceleration or defaults could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Effect on Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Samples: Stock Option Agreement (Cadence Design Systems Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could breach or default is reasonably be expected likely to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters as otherwise disclosed in any filings made by the Issuer with the SEC, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which is reasonably likely to result in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 any of its respective directors, officers or, to the knowledge of the Issuer, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”).
2.12 Neither the Issuer nor any of its Subsidiaries nor any of its respective directors, officers or employees or, to the knowledge of the Issuer, agents, advisors or Affiliates acting for or on behalf of the Issuer has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”).
2.13 Each of the Issuer and its Subsidiaries and Affiliates have instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws.
2.14 No part of the proceeds of the Notes will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Issuer or any Dealer being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.
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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer Material Adverse Effect, which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Becton Dickinson & Co)
Representations and Warranties of 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 its jurisdiction of incorporation, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such ■ Commercial Paper Dealer Agreement 4(2) Program ■ 4 qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer ■ Commercial Paper Dealer Agreement 4(2) Program ■ 5 or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and subject to public policy limitations on indemnification obligations.
2.3 The Notes have establishment of the commercial paper program contemplated hereby has been duly authorized, and when . When the Notes are issued as provided in the Issuing and Paying Agency Agent Agreement, such Notes will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer Issuer, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agent Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating 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, violation or default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), operations or business prospects of the Issuer and its consolidated subsidiaries, taken as a whole, which would be material to the Issuer, which could reasonably be expected holders of Notes or to have a Material Adverse Effect, (v) result in potential holders of Notes or require the creation or imposition ability of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse EffectAgent Agreement.
2.8 Except for matters disclosed Other than as set forth in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which is reasonably likely to result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer and its consolidated subsidiaries, taken as a whole, which would be material to the holders of Notes or by any Governmental Authority that has had to potential holders of Notes to perform its obligations under this Agreement, the Notes or could reasonably be expected to have a Material Adverse Effectthe Issuing and Paying 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 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 above in this Section 2 remain true and correct 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer whichand its consolidated subsidiaries, if not publicly availabletaken as a whole, which would be material to the holders of Notes or to potential holders of Notes which has not been disclosed in the Company Information or to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 . The offer and sale of the Notes by the Issuer 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(a)(24(2) thereofthereof and Regulation D 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 . Neither the Issuer nor any affiliate (as defined in Regulation 501(b) of Regulation D), will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which will be integrated with the sale of the Notes in a manner which would require the registration of the Notes under the Securities Act. The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No . Except as provided in Section 1.6(j), 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, 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 The execution, . Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer's charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which could reasonably be expected to breach or default might have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), (v) result in operations or require the creation or imposition business prospects of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consentsAgreement. There is no litigation or governmental proceeding pending, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties subsidiaries which might result in any court a material adverse change in the condition (financial or before any arbitrator otherwise), operations or business prospects of any kind the Issuer or before the ability of the Issuer to perform its obligations under this Agreement, the Notes or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 the Issuing and Paying Agency Agreement. 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 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 , provided that the Issuer makes no representation and warranty regarding the Dealer Information. 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally and subject, reorganizationas to enforceability, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement general principles of creditors’ rights in general and the availability of equitable remedies 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 condition (financial condition or otherwise), operations or business prospects of the Issuer which, if not publicly available, which has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Federated Department Stores Inc /De/)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and subject, as to enforceability, to the qualifications set forth in the Opinion Letter referred to in Section 3.6(a) below.
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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights generally, reorganizationand subject, moratorium or similar state or federal debtor relief laws from time as to time in effect which affect the enforcement enforceability, to general principles of creditors’ rights in general and the availability of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and subject, as to enforceability, to the qualifications set forth in the Opinion Letter referred to in Section 3.6(a) below.
2.4 The offer issuance and sale of Notes under the Notes circumstances contemplated by this Agreement and the Issuer in the manner contemplated hereby 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval relating to the Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effect, (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect.
2.9 The Issuer is not 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 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 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 or operations of the Issuer which, if not publicly available, has not been disclosed to the Dealer in writing and (iv) the Issuer is not in default under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effect.in
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Cardinal Health Inc)
Representations and Warranties of 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 its the jurisdiction of incorporation, has the power its incorporation and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effect. The Issuer 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally, and subject, as to enforceability, to general and the availability principles of equitable remedies equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes by the Issuer 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(a)(24(2) thereof, 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 No Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 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 The execution, Neither the execution and delivery and performance by the Issuer of this Agreement and the Issuing and Paying Agency Agreement, and nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance nor the fulfillment of or compliance with its respective terms, the terms and the transactions contemplated hereby and thereby do not and will not, provisions hereof or thereof by the passage of timeIssuer, the giving of notice or otherwise, will (i) require result in the creation or imposition of any Governmental Approval relating to mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the Issuer where properties or assets of the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse EffectIssuer, or (ii) violate any Applicable Law relating to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, or result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indentureof the terms of the Issuer’s charter documents or by-laws, agreement any contract or other instrument to which the Issuer is a party or by which any of it or its properties may be bound property is bound, or any Governmental Approval relating law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the IssuerIssuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a Material Adverse Effect, (v) result in or require material adverse effect on the creation or imposition financial condition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer and its subsidiaries taken as a whole or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent the ability of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consentsAgreement. 2.8 All of the agreements or indentures listed as exhibits in exhibit number 10.1 through 10.23 to the Issuer’s Annual Report of Form 10-K for the year ended December 31, authorizations, filings or other acts or consents which have been obtained or made and 2004 are in full force and effect or for which all of the failure contracts required to obtain or make could not reasonably be expected to have a Material Adverse Effectso filed.
2.8 2.9 Except for matters as disclosed in any filings made by the Issuer with the SECCompany Information, there are is no actionslitigation or governmental proceeding pending, suits or proceedings pending nor, to the knowledge of the IssuerIssuer threatened, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that has had or could subsidiaries which might reasonably be expected to have result in a Material Adverse Effectmaterial adverse change in the financial condition 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 2.10 The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 2.11 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact 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 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 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, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar state or federal debtor relief laws from time to time in effect which affect the enforcement of affecting creditors’ rights in generally and subject, as to enforceability, to general and the availability principles of equitable remedies 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 or operations of the Issuer which, if not publicly available, 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 under any of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse Effectwriting.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Danaher Corp /De/)
Representations and Warranties of Issuer. The Issuer hereby represents and warrants thatto Grantee as follows:
2.1 The (a) Issuer is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has the all requisite corporate power and authority to own its properties and enter into this Agreement and, subject to carry on its business as now being and hereafter proposed any approvals or consents referred to be conducted and is duly qualified and authorized herein, to do business in each jurisdiction in which consummate the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to be so qualified or in good standing could not be reasonably expected to result in a Material Adverse Effecttransactions contemplated hereby. The Issuer has all the requisite power execution 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at 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, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes by the Issuer 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(a)(2) thereof, 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 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 The execution, delivery and performance by the Issuer of this Agreement and the Issuing consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Issuer. This Agreement has been duly executed and Paying Agency delivered by Issuer. The execution and delivery of this Agreement, and the issuance consummation of the Notes in accordance with the Issuing and Paying Agency Agreement, each in accordance with its respective terms, and the transactions contemplated hereby and thereby do compliance by Issuer with any of the provisions hereof will not and will not, by the passage of time, the giving of notice or otherwise, (i) require conflict with or result in a breach of any Governmental Approval relating provision of its Certificate of Incorporation or Bylaws or a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, condition or provisions of any note, bond, debenture, mortgage, indenture, license, material agreement or other material instrument or obligation to which Issuer where the failure to obtain such Governmental Approval could reasonably be expected to have a Material Adverse Effectis bound, or (ii) violate any Applicable Law relating order, writ, injunction, decree, statute, rule or regulation applicable to the Issuer except where such violation could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with, result in a breach of or constitute a default under the articles of incorporation or bylaws of the Issuer, (iv) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Issuer is a party or by which any of its properties may be bound or any Governmental Approval relating to the Issuer, which could reasonably be expected to have a Material Adverse Effect, (v) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Issuer or (vi) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the Issuing and Paying Agency Agreement other than consents, authorizations, filings or other acts or consents which have been obtained or made and are in full force and effect or for which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
2.8 Except for matters disclosed in any filings made by the Issuer with the SEC, there are no actions, suits or proceedings pending nor, to the knowledge of the Issuer, threatened against or in any other way relating adversely to or affecting the Issuer or any of its properties or assets. No Consent by any governmental or - 3 - 4 regulatory agency or authority, other than compliance with applicable federal and state securities laws or the filing of a notification under the HSR Act, is required of Issuer in any court connection with the execution and delivery by Issuer of this Agreement or before any arbitrator the consummation by Issuer of the transactions contemplated hereby.
(b) Issuer has taken all necessary corporate and other action to authorize and reserve and to permit it to issue, and, at all times from the date hereof until the obligation to deliver Issuer Common Stock upon the exercise of the Option terminates, will have reserved for issuance, upon exercise of the Option, the number of shares of Issuer Common Stock necessary for Holder to exercise the Option, and Issuer will take all necessary corporate action to authorize and reserve for issuance all additional shares of Issuer Common Stock or other securities which may be issued pursuant to Section 7 upon exercise of the Option. The shares of Issuer Common Stock to be issued upon due exercise of the Option, including all additional shares of Issuer Common Stock or other securities which may be issuable pursuant to Section 7, upon issuance pursuant hereto, shall be duly and validly issued, fully paid, and nonassessable, and shall be delivered free and clear of all liens, claims, charges, and encumbrances of any kind or before or by nature whatsoever, including any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effectpreemptive rights of any stockholder of Issuer.
2.9 (c) The authorized capital stock of Issuer is not an “investment company” within the meaning consists 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 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 30,000,000 shares of Gazelle Common Stock, of which 16,347,064 shares are issued and warranties given by the Issuer set forth in outstanding at this Section 2 remain true and correct on and as of such date as if made on and as of such date, and (ii) in the case 1,000,000 shares of an issuance preferred stock, $.01 par value per share, none of Notes, the Notes being issued on such date have been duly and validly which are issued and constitute legal, valid and binding obligations outstanding. Except as disclosed in Section 5.3(b) of the Issuer, enforceable against the Issuer in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies (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 Gazelle Disclosure Memorandum, there has been are no material adverse change in the financial condition or operations other equity securities of the Issuer which, if not publicly available, has not been disclosed Gazelle outstanding and no outstanding Equity Rights relating to the Dealer in writing and (iv) the Issuer is not in default under any capital stock of its obligations hereunder, under the Issuing and Paying Agency Agreement or the Notes that is reasonably likely to result in a Material Adverse EffectGazelle.
Appears in 1 contract
Samples: Stock Option Agreement (Gulf South Medical Supply Inc)
