Representations and Warranties of the Company and the Trust. Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), the Company and the Trust jointly and severally represent and warrant to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by the Company and the Trust and this Second Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Company and the Trust enforceable against each of them in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b) the Note Purchase Agreement, as amended by this Second Amendment, constitutes the legal, valid and binding obligation, contract and agreement of the Company and the Trust enforceable against each of them in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery and performance by the Company and the Trust of this Second Amendment (i) have been duly authorized by all requisite partnership or corporate action and, if required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or the Company’s or the Trust’s other limited partnership agreement, trust agreement or charter documents, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Company or the Trust or (3) any provision of any material indenture, agreement or other instrument to which either the Company or the Trust is a party or by which their properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing; and
(e) neither the Company, the Trust nor any of their Affiliates has paid or agreed to pay any fees or other consideration, or given any ...
Representations and Warranties of the Company and the Trust. Each of the Company and the Trust jointly and severally represents and warrants to and agrees with each of the Co-Dealer Managers that:
(a) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Securities Act, will comply when so filed, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of the Registration Statement when such part becomes effective will not contain, and each such part, as amended, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and as of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or 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, except that the representations and warranties set forth in this Section 5(a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee.
(b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and th...
Representations and Warranties of the Company and the Trust. Each of the Company and the Trust jointly and severally represent and warrant to and agrees with each of the Dealer Managers that:
Representations and Warranties of the Company and the Trust. The Company and the Trust, jointly and severally with the Company, represents and warrants to, and agrees with, the several Underwriters that:
Representations and Warranties of the Company and the Trust. Each of the Company and the Trust further represents and warrants to the Remarketing Agent as of each Representation Date, as applicable to each such entity, that:
(i) Securities Validly Issued. The Preferred Securities and Subordinated Notes have been validly authorized and executed by the Trust and the Company, as the case may be, and authenticated, issued and
Representations and Warranties of the Company and the Trust. Each of the Trust and the Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3, as amended (Registration Nos. 333- 68937 and 333-68937-01) (the "Initial Registration Statement") in respect of the Units, including the Purchase Contracts, the Purchase Contract Shares, the Trust Preferred Securities, the Junior Subordinated Debentures, the Guarantee and the Call Options, has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to such registration statement, but including all documents incorporated by reference in the prospectus included therein, to the Representatives for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed, or transmitted for filing, with the Commission (other than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act each in the form heretofore delivered to the Representatives and Current Reports on Form 8-K dated June 29 and June 30, 1999); no stop order suspending the effectiveness of the Initial Registration Statement is in effect and no proceedings for such purposes are pending before or, to the knowledge of the Company, threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary Prospectus"); the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all
Representations and Warranties of the Company and the Trust. The Company and the Trust jointly and severally represent and warrant to, and agree with the Placement Agent and Purchaser, as follows:
Representations and Warranties of the Company and the Trust. The Company and the Trust jointly and severally represent and warrant, as of the Closing Date, to, and agrees with Kodiak, as holder of the Original Preferred Securities and with the Holders of the New Preferred Securities, as follows:
(a) The Company (i) is duly organized and validly existing under the laws of Delaware, (ii) is in good standing under such laws and (iii) has full power and authority to execute, deliver and perform its obligations under this Agreement and the other Operative Documents.
(b) The Company is an “accredited investor” as defined in Rule 501 under the Securities Act. Without characterizing the Original Preferred Securities or any of the Kodiak Transferred Rights as a “security” within the meaning of applicable securities laws, it is not acquiring the Original Preferred Securities or the Kodiak Transferred Rights with a view towards the sale or distribution thereof in violation of the Securities Act.
(c) The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (the “Statutory Trust Act”) with all requisite power and authority to own property and to conduct the business it transacts and proposes to transact and to enter into and perform its obligations under the Operative Documents to which it is a party. The Trust is duly qualified to transact business as a foreign entity and is in good standing in each jurisdiction in which such qualification is necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect. The Trust is not a party to or otherwise bound by any agreement other than the Operative Documents. The Trust is and will be, under current law, classified for federal income tax purposes as a grantor trust and not as an association or publicly traded partnership taxable as a corporation.
(d) The Company (i) has no current intention to initiate any bankruptcy or insolvency proceedings and (i) has not entered into the Operative Documents with the actual intent to hinder, delay, or defraud any creditor. None of the New Preferred Securities, the New Indenture or the Exchange is or may be subject to any Impairment.
(e) It (i) is a sophisticated entity with respect to the Exchange, (ii) has sufficient knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and (iii) has independently and wit...
Representations and Warranties of the Company and the Trust. Each of the Company and the Trust further represents and warrants to the Remarketing Agent as of each Representation Date, as applicable to each such entity, that:
(i) Securities Validly Issued. The Preferred Securities and Subordinated Notes have been, and the Replacement Preferred Securities and the Replacement Subordinated Notes will be, validly authorized and executed by the Trust and the Company, as the case may be, and authenticated, issued and delivered in the manner provided for in the Trust Agreement and the Indenture, as the case may be, and delivered against payment of the purchase price therefor as provided in the Purchase Agreement, and constitute, or will constitute, legally binding obligations of the Trust or the Company, as the case may be, entitled to the benefits of the Trust Agreement and Indenture.
Representations and Warranties of the Company and the Trust. The Company and the Regular Trustees, jointly and severally, represent and warrant to the CTP Holders, as of the Closing Date, as follows:
