Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 3 contracts
Samples: Omnibus Amendment (BBX Capital Corp), Omnibus Amendment (Bluegreen Vacations Corp), Note Funding Agreement (BBX Capital Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that Registered Holder as of the date hereofJanuary 20, the Closing Date and each Funding Date: It 2014, as follows:
(a) Issuer is a statutory trust validly corporation duly organized, existing and in good standing under the laws of its state or province of incorporation and has the State of Delaware, with full power and authority under such laws to own its properties and conduct its the business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority conducts and right proposes to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the conduct.
(b) The execution, delivery and performance of this Agreement the Securities by the Issuer has been duly approved by the Board of Directors of Issuer and all other actions required to authorize and effect the offer and sale of the Securities have been duly taken and approved.
(c) The Securities and the Transaction Documents to which it is a partyCommon Stock issuable upon conversion of the Securities (the "Conversion Shares") have been duly and validly authorized. When executed The Securities and deliveredConversion Shares, each of this Agreement when issued and paid for in accordance with the Transaction Documents to which it is a party terms hereof, will constitute its legal, be fully paid and non-assessable and valid and binding obligations, obligations of the Issuer enforceable in accordance with their respective terms.
(d) Issuer will, subjectat all times have authorized and reserved a sufficient number of shares of Common Stock to provide for conversion of the Securities into shares of Common Stock.
(e) Issuer has obtained all licenses, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium permits and other laws relating governmental authorizations necessary to or affecting creditors’ rights generally from time to time in effect. The enforceability the conduct of its obligations under business; such agreements may also be limited by general principles of equitylicenses, regardless of whether such enforceability is considered in a proceeding in equity or at law, permits and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be other governmental authorizations obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be are in full force and effect on the Closing Date, except such that may be required by applicable securities laws effect; and Issuer is in all material respects complying therewith.
(f) Issuer knows of no pending or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents threatened legal or governmental proceedings to which it Issuer is a party do which could materially adversely affect the business, property, financial condition or operations of the Issuer.
(g) Issuer is not violate any provision in violation of or default under, nor will the execution and delivery of the Securities, the issuance of the Common Stock upon conversion of the Securities and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, result in a violation of, or constitute a default under the certificate of incorporation or by-laws, the performance or observance of any existing law material obligations, agreement, covenant or regulation applicable to itcondition contained in any bond, debenture, note or other evidence of indebtedness or in any order or decree of any court to which it is subject, the Trust Agreement, or any mortgagematerial contract, indenture, contract mortgage, loan agreement, lease, joint venture or other agreement agreements or instrument to which it the Issuer is a party or by which it or any significant portion of its properties is bound. There is no litigation may be bound or administrative proceeding before in violation of any material order, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, tribunal domestic or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueforeign.
Appears in 3 contracts
Samples: Convertible Debenture (UHF Inc), Convertible Debenture (UHF Inc), Convertible Debenture (Target Acquisitions I, Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as Managing Broker Dealer, each of the date hereofSelling Group Members, the Closing Date and each Funding Date: It of the Introducing RIAs that:
2.1 The Issuer is duly organized and validly exists as a statutory trust validly existing and corporation in good standing under the laws of the State state of DelawareNevada, with full has all requisite power and authority under such laws to own its properties enter into this Agreement, and has all requisite power and authority to conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and described in the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. Offering Circular.
2.2 No consent, licenseapproval, approval or authorization ofauthorization, or registration with, other order of any Governmental Authority governmental authority is required to be obtained in connection with the execution, execution or delivery or performance of each by the Issuer of this Agreement or the issuance and sale by the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on Issuer of the Closing DateSecurities, except such that as may be required by under the Securities Act or applicable state securities laws laws.
2.3 No defaults exist in the due performance or UCC-1 Financing Statements as have been prepared for filing. The executionobservance of any material obligation, delivery and performance term, covenant, or condition of each of this Agreement and the Transaction Documents any agreement or instrument to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court.
2.4 This Agreement, tribunal or governmental body pending orwhen executed by the Issuer, to will have been duly authorized and will be a valid and binding agreement of the Issuer, enforceable in accordance with its Knowledge, threatened against it, with respect to this Agreement terms.
2.5 At the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or time of the issuance of the Notes. No reportSecurities, statementthe Securities will have been duly authorized and validly issued, exhibit or other written information required and upon payment therefor, will be fully paid and non-assessable and will conform to be furnished by the description thereof contained in the Offering Circular.
2.6 Subject to the performance of the Issuer’s obligations hereunder, the holders of the Securities will have the rights described in the Offering Circular and associated transaction documents.
2.7 Subject to Section 3.2, the Offering Circular does not include, nor will it include through and on the Offering Termination Date, any untrue statement of a material fact, nor does it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall will it omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein not misleading.
2.8 As of the Effective Date, in the date of the filing of the offering statement, and at the time of any sale of the Securities (collectively, the “Applicable Date”) the Issuer hereby represents and warrants to the Managing Broker Dealer, each caseof the Selling Group Members, and Introducing RIAs, that as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any PurchaserApplicable Date, as the case may be, at such time) as none of the date so furnished. The Notes have been duly and validly authorizedissuer; any predecessor of the issuer; any affiliated issuer; any director, andexecutive officer, when executed and authenticated other officer participating in accordance the offering, general partner or managing member of the issuer; any beneficial owner of 20% or more of the issuer's outstanding voting equity securities, calculated on the basis of voting power; any promoter connected with the terms issuer in any capacity at the time of the Indenture and delivered to and paid for in accordance with this Agreementfiling, will be duly and validly issued and outstandingany offer after qualification, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance such sale; any person that has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at (directly or prior indirectly) remuneration for solicitation of purchasers in connection with such sale of securities; any general partner or managing member of any such solicitor; or any director, executive officer or other officer participating in the offering of any such solicitor or general partner or managing member of such solicitor:
2.8.1 Has been convicted, within ten (10) years of any Applicable Date (or five years, in the case of issuers, their predecessors and affiliated issuers) of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving or making of any false filing with the Securities and Exchange Commission (the “SEC”); or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
2.8.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the Closing purchase or sale of any security;
(b) Involving the making of any false filing with the SEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
2.8.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activities.
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
2.8.4 Is subject to an order of the SEC pursuant to Section 15(b) or 15B(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) or Section 203(e) or (f) of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any xxxxx stock.
2.8.5 Is subject to any order of the SEC entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
2.8.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
2.8.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the SEC that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
2.8.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
2.8.9 The Issuer agrees to immediately notify the Managing Broker Dealer if there is any event or potential event concerning any person described in Rule 262 of Regulation A whereby such person becomes, or is likely to become, a “Bad Actor” during the Offering Period.
2.9 The representations and warranties made in this Section 2 are made as of the Effective Date to and shall be continuing representations and warranties throughout the extent then dueterm of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Issuer will immediately notify the Managing Broker Dealer in writing of the fact which makes the representation or warranty untrue.
Appears in 3 contracts
Samples: Managing Broker Dealer Agreement (Manufactured Housing Properties Inc.), Managing Broker Dealer Agreement (Manufactured Housing Properties Inc.), Managing Broker Dealer Agreement (Manufactured Housing Properties Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust limited partnership duly formed and validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its formation and has all the requisite limited partnership power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. ).
2.3 The Notes have been duly authorized by the Issuer, and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture issued and delivered to as provided in the Issuing and paid for in accordance with this Paying Agency Agreement, will be duly and validly issued and outstandingdelivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and will be entitled subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the benefits exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the IndentureNotes 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 Assuming the offer and sale of the Notes in the manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained or made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payments and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the other Transaction Documents. Each Issuing and Paying Agency Agreement, nor the issuance of the Transaction Documents Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any mortgage, lien, charge or similar encumbrance upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or default under, as the case may be, any of the terms of the Issuer’s certificate of limited partnership or agreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is in full force bound, or any statutory law or regulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default could reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and effect its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no amortizationlitigation or governmental proceeding pending, termination or other event to the knowledge of the Issuer threatened, against or circumstance has occurred thereunder affecting the Issuer or in connection therewith that any of its subsidiaries which could reasonably be expected to result in a material adverse change in the termination of any such agreement financial condition or any other interruption operations of the ongoing performance Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” 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 Dealer Information.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer in the Transaction Documents to and its consolidated subsidiaries taken as a whole which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
Section 2.1. The Issuer is a statutory trust limited liability company duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its organization and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a partyIssuing and Paying Agency Agreement.
Section 2.2. It has the power, authority and right to make, execute, deliver and perform this This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law).
Section 2.3. The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 2.4. The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation or warranty indenture in respect of the Notes is made required to be qualified under the Trust Indenture Act of 1939, as amended.
Section 2.5. The Notes will rank at least pari passu with respect to all other unsecured and unsubordinated indebtedness of the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violationsIssuer.
Section 2.6. No consent, license, approval consent or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
Section 2.7. Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default is reasonably likely to have a material adverse effect on 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.
Section 2.8. There Except as disclosed by the Issuer in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which is reasonably likely to result in a material adverse change in the financial condition of the Issuer and its subsidiaries, agents taken as a whole, or representatives in the ability of the Issuer to any Funding Agent or any Purchaser pursuant to perform its obligations under this Agreement Agreement, the Notes or the Transaction Documents Issuing and Paying Agency Agreement.
Section 2.9. The Issuer is not an “investment company” or shall be inaccurate in an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 2.10. Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
Section 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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement condition (financial or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties otherwise), operations or business prospects of the Issuer which has not been disclosed to the Dealer in writing (which writing may be distributed through electronic posting on a website, provided that the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as Dealer receives written notification of such earlier date). Any taxesposting) and (iv) the Issuer is not in default of any of its obligations hereunder, fees under the Notes or under the Issuing and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duePaying Agency Agreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (GP Cellulose Group LLC)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite corporate power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agent Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agent Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Subject to the offer and sale of Notes being conducted by Dealer in accordance with this Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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, other than in the case of obligations preferred by mandatory provisions of law.
2.6 No consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement by the Issuer, except as may be required by the securities or Blue Sky laws of each the various states or the rules of the Financial Industry Regulatory Authority (“FINRA”) in connection with the offer and sale of the Notes and the filing of a current report with the SEC by the Issuer.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not Paying Agent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and Paying Agent Agreement by the Issuer, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will not be (i) result in full force and effect on the Closing Date, except such that may be required by applicable securities laws creation or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance imposition of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There is no litigation , or administrative proceeding before any courtlaw or regulation, tribunal or governmental body pending orany order, writ, injunction or decree of any court or government instrumentality, to its Knowledge, threatened against it, with respect to this Agreement which the Transaction Documents to Issuer is subject or by which it or its property is a partybound, the transactions contemplated hereby which breach or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could default would reasonably be expected to result in a material adverse effect on the termination 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 Agent Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries, other than that which is disclosed in the Company Information, which would reasonably be expected to result in a material 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 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 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 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 violation or a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or similar law or regulation of any such agreement other relevant jurisdiction; and the Issuer, its subsidiaries and affiliates have each conducted their businesses in compliance with the FCPA 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 or its subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer or its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any other interruption 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 ongoing performance 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 parties 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) (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 each 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 agreement funding or facilitation, is the subject of their respective obligations thereunder. The Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer repeats and reaffirms nor any of its subsidiaries nor any director or officer, nor to the Funding Agents 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 Each (a) issuance of Notes by the Purchasers each 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the Transaction Documents to which it is a party and each other document delivered case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no occurrence in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior relation to the Closing Date Issuer that would reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement which has not been disclosed to the extent then dueDealer in writing or in the Company Information and (iv) the Issuer is not in default of any of its obligations hereunder or under the Notes or the Issuing and Paying Agent Agreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (Leggett & Platt Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Broker- Dealer that:
2.1 The Issuer has been duly organized and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It is a statutory trust validly existing and as a limited liability company in good standing under the laws of the State of Delaware, with full has all requisite power and authority under such laws to own its properties enter into this Agreement, and has all requisite power and authority to conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement described in the Registration Statement and the Transaction Documents Prospectus.
2.2 No defaults exist in the due performance or observance of any material obligation, term, covenant, or condition of any agreement or instrument to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, .
2.3 Subject to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a partySection 3.3, the transactions contemplated hereby or thereby or Registration Statement, which the issuance Prospectus forms a part of, does not include, nor will it include, any untrue statement of the Notes. No report, statement, exhibit or other written information required to be furnished by a material fact nor does it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall will it omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein not misleading.
2.4 No consent, approval, authorization, or other order of any governmental authority is required in each caseconnection with the execution or delivery by the Issuer of this Agreement or the issuance and sale by the Issuer of the Securities, except such as may be required under the Securities Act or applicable state securities laws and all regulations promulgated under any of the foregoing.
2.5 At the time of the issuance of the Securities, the Securities will have been duly authorized and validly issued and will conform to the description thereof contained in the Registration Statement, which the Prospectus forms a part of.
2.6 The representations and warranties made in this Section 2 are made as of the date it is or hereof and shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the continuing representations and warranties throughout the Offering Period. In the event that any of these representations or warranties becomes untrue or is incorrect, the Issuer will immediately notify the Broker-Dealer in writing of the Issuer in fact which makes the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise untrue or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueincorrect.
Appears in 2 contracts
Samples: Broker Dealer Agreement (iCap Vault 1, LLC), Broker Dealer Agreement (Vault Holding 1, LLC)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust limited partnership duly formed and validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its formation and has all the requisite limited partnership power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. ).
2.3 The Notes have been duly authorized by the Issuer, and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture issued and delivered to as provided in the Issuing and paid for in accordance with this Paying Agency Agreement, will be duly and validly issued and outstandingdelivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and will be entitled subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the benefits exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the IndentureNotes 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 Assuming the offer and sale of the Notes in the manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained or made by the Issuer under any material statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the other Transaction Documents. Each Issuing and Paying Agency Agreement, nor the issuance of the Transaction Documents Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any consensual mortgage, lien or similar encumbrance upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or default under, as the case may be, any of the terms of the Issuer’s certificate of limited partnership or agreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is in full force bound, or any statutory law or regulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default could reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and effect its subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no amortizationlitigation or governmental proceeding pending, termination or other event to the knowledge of the Issuer threatened, against or circumstance has occurred thereunder affecting the Issuer or in connection therewith that any of its subsidiaries which could reasonably be expected to result in a material adverse change in the termination of any such agreement financial condition or any other interruption operations of the ongoing performance Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” 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 Dealer Information.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer in the Transaction Documents to and its subsidiaries taken as a whole which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp), Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof and Rule 506 thereunder, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j) hereof, no consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to subsidiaries which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in a material adverse change in the termination of any such agreement condition (financial or any other interruption otherwise) or operations of the ongoing performance Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact and the Private Placement Memorandum and the Company Information, taken as a whole, do not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer which has not been disclosed to the Dealer in writing and (iv) the Transaction Documents to which it Issuer is a party and each other document delivered not in connection therewith or herewithdefault of any of its obligations hereunder, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier dateunder the Notes or, in which case such representation any material respect, under the Issuing and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duePaying Agent Agreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (SOUTH JERSEY GAS Co), Commercial Paper Dealer Agreement (South Jersey Gas Co/New)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the financial condition of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement subsidiaries which might result in a material adverse change in the financial condition of the Issuer or the Transaction Documents 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 or shall be inaccurate in not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.1
2.10 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties financial condition of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date Dealer in writing and (iv) the Issuer is not in default of any of its obligations hereunder or under the Notes or the Issuing and Paying Agency Agreement. 1 The phrase “or an entity controlled by an investment company” is not included in this representation. See the Bond Market Association Model Commercial Paper Dealer Agreement (the “BMA Model”) Guidance Note to Section 2.11 for a description of the extent then duelimited circumstances where this phrase should be included.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement (Norfolk Southern Corp), Commercial Paper Dealer Agreement (Norfolk Southern Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, the Closing Amendment Date and each Funding Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Amendment Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. .
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. .
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. .
(h) Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Amendment Date to the extent then due.
Appears in 2 contracts
Samples: Note Funding Agreement (Bluegreen Corp), Note Funding Agreement (Bluegreen Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as Managing Broker Dealer, each of the date hereofSelling Group Members, the Closing Date and each Funding Date: It of the Introducing RIAs that:
2.1 The Issuer is duly organized and validly exists as a statutory trust validly existing and limited liability company in good standing under the laws of the State state of Delaware, with full has all requisite power and authority under such laws to own its properties enter into this Agreement, and has all requisite power and authority to conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and described in the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. Offering Circular.
2.2 No consent, licenseapproval, approval or authorization ofauthorization, or registration with, other order of any Governmental Authority governmental authority is required to be obtained in connection with the execution, execution or delivery or performance of each by the Issuer of this Agreement or the issuance and sale by the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on Issuer of the Closing DateSecurities, except such that as may be required by under the Securities Act or applicable state securities laws laws.
2.3 No defaults exist in the due performance or UCC-1 Financing Statements as have been prepared for filing. The executionobservance of any material obligation, delivery and performance term, covenant, or condition of each of this Agreement and the Transaction Documents any agreement or instrument to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court.
2.4 This Agreement, tribunal or governmental body pending orwhen executed by the Issuer, to will have been duly authorized and will be a valid and binding agreement of the Issuer, enforceable in accordance with its Knowledge, threatened against it, with respect to this Agreement terms.
2.5 At the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or time of the issuance of the Notes. No reportSecurities, statementthe Securities will have been duly authorized and validly issued, exhibit or other written information required and upon payment therefor, will be fully paid and non-assessable and will conform to be furnished by the description thereof contained in the Offering Circular.
2.6 Subject to the performance of the Issuer’s obligations hereunder, the holders of the Securities will have the rights described in the Offering Circular and associated transaction documents.
2.7 Subject to Section 3.2, the Offering Circular does not include, nor will it include through and on the Offering Termination Date, any untrue statement of a material fact, nor does it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall will it omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein not misleading.
2.8 As of the Effective Date, in the date of the filing of the offering statement, and at the time of any sale of the Securities (collectively, the “Applicable Date”) the Issuer hereby represents and warrants to the Managing Broker Dealer, each caseof the Selling Group Members, and Introducing RIAs, that as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any PurchaserApplicable Date, as the case may be, at such time) as none of the date so furnished. The Notes have been duly and validly authorizedissuer; any predecessor of the issuer; any affiliated issuer; any director, andexecutive officer, when executed and authenticated other officer participating in accordance the offering, general partner or managing member of the issuer; any beneficial owner of 20% or more of the issuer's outstanding voting equity securities, calculated on the basis of voting power; any promoter connected with the terms issuer in any capacity at the time of the Indenture and delivered to and paid for in accordance with this Agreementfiling, will be duly and validly issued and outstandingany offer after qualification, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance such sale; any person that has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at (directly or prior indirectly) remuneration for solicitation of purchasers in connection with such sale of securities; any general partner or managing member of any such solicitor; or any director, executive officer or other officer participating in the offering of any such solicitor or general partner or managing member of such solicitor:
2.8.1 Has been convicted, within ten (10) years of any Applicable Date (or five years, in the case of issuers, their predecessors and affiliated issuers) of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving or making of any false filing with the Securities and Exchange Commission (the “SEC”); or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
2.8.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the Closing purchase or sale of any security;
(b) Involving the making of any false filing with the SEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
2.8.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activities.
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
2.8.4 Is subject to an order of the SEC pursuant to Section 15(b) or 15B(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) or Section 203(e) or (f) of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any pexxx xtock.
2.8.5 Is subject to any order of the SEC entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
2.8.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
2.8.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the SEC that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
2.8.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
2.8.9 The Issuer agrees to immediately notify the Managing Broker Dealer if there is any event or potential event concerning any person described in Rule 262 of Regulation A whereby such person becomes, or is likely to become, a “Bad Actor” during the Offering Period.
2.9 The representations and warranties made in this Section 2 are made as of the Effective Date to and shall be continuing representations and warranties throughout the extent then dueterm of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Issuer will immediately notify the Managing Broker Dealer in writing of the fact which makes the representation or warranty untrue.
Appears in 2 contracts
Samples: Managing Broker Dealer Agreement (Trilogy Multifamily Income & Growth Holdings I, LLC), Managing Broker Dealer Agreement (Trilogy Multifamily Income & Growth Holdings I, LLC)
Representations and Warranties of the Issuer. The Issuer hereby represents makes the following representations and warrants to warranties for the Funding Agents benefit of the Trustee and Holders of the Purchasers that Notes, on which the Seller relies in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of the date hereof, the Closing Date unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Purchased Assets:
(a) The Issuer has been duly organized and each Funding Date: It is a statutory trust validly existing and in good standing as a limited liability company under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to executeproperties, deliver and perform its obligations under the Transaction Documents and to transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and is in good standing in each State in which the nature of its business requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer of each Seller's interest in the Receivables and a security interest in the related Credits pursuant to this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all consummation of the transactions contemplated hereby herein and thereby in the Transaction
(c) The Transaction Documents have been duly authorized, executed and has taken delivered by the Issuer by all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and legally binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject, subject as to such enforceability, enforcement to applicable bankruptcy, reorganization, insolvency, moratorium reorganization and other similar laws of general applicability relating to or affecting creditors’ ' rights generally from time and to time general principles of equity regardless of whether enforcement is sought in effect. The enforceability a court of equity or law.
(d) There are no proceedings or investigations to which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement, or (c) seeking any determination or ruling that would materially and adversely affect the performance by the Issuer of its obligations under such agreements may also be limited by general principles of equityunder, regardless of whether such or the validity or enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, this Agreement.
(e) All approvals, authorizations, consents, orders or registration withother actions of any Person or of any court, any Governmental Authority is governmental agency or body or official, required to be obtained in connection with the execution, execution and delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at taken or obtained on or prior to the Closing Date to Date.
(f) The Issuer Address is the extent then dueprincipal place of business and chief executive office of the Issuer.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Trendwest Resorts Inc), Purchase and Sale Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents represents, covenants, warrants and warrants to agrees with you for your benefit that:
A. The Issuer has prepared and filed with the Funding Agents Securities and Exchange Commission (the "Commission"), a Registration Statement and amendments thereto, on Form S-3 (File No. 333-101380) covering the registration of Securities under the Securities Act of 1933 (the "Securities Act") and the Purchasers that Rules and Regulations of the Commission under the Securities Act (the "Rules and Regulations"). Such Registration Statement, as amended, qualifies for use under Form S-3 at the time it becomes effective. The registration statement and final prospectus included therein, are herein respectively called the "Registration Statement" and the "Prospectus."
B. The Registration Statement and Prospectus, and all amendments or supplements thereto, will contain all statements which are required to be stated therein in accordance with the Securities Act and the Rules and Regulations and will conform in all material respects with the requirements of the Securities Act and the Rules and Regulations, and neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, will contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements therein not misleading.
C. The Accountants who have certified or shall certify the audited financial statements of the Issuer filed and to be filed with the Commission by being incorporated by reference as part of the Registration Statement and the Prospectus were independent accountants as required by the Securities Act and the Rules and Regulations.
D. The financial statements of the Issuer filed with and as part of the Registration Statement present fairly the financial position of the Issuer, respectively, as of the date dates of such financial statements, in conformity with generally accepted accounting principles.
E. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as set forth therein or contemplated thereby: (i) there has not been any material adverse change in the condition, financial or otherwise, of the Issuer; and (ii) the Issuer has not incurred any liability or obligation or entered into any transaction otherwise than in the ordinary course of business, which change or liability, obligation or transaction is material to the financial condition of the Issuer.
F. The Securities conform to the description thereof contained in the Prospectus in all material respects.
G. Neither the issuance nor the sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, will conflict with, result in a breach of or constitute a default under the Closing Date terms of any indenture, or other material agreement or instrument to which the Issuer will be subject, or to the best of their respective knowledge, any order or regulation applicable to any or all of them of any court, regulatory or governmental body having jurisdiction over them or any of their respective properties or operations.
H. The Securities, when issued, will be duly authorized, validly issued, fully paid and each Funding Date: It nonassessable.
I. The Issuer has been duly formed pursuant to Colorado and is a statutory trust validly existing and as a corporation in good standing under the laws of the State of Delaware, Colorado with full power and authority under such laws to own its properties (or interest therein) and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under described in the Prospectus.
J. The person who has signed this Agreement on behalf of the Issuer, is duly authorized to so sign, and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When been duly executed and delivereddelivered by, each of this Agreement and is the Transaction Documents to which it is a party will constitute its legalvalid, valid legal and binding obligationsagreement of, the Issuer, enforceable in accordance with their respective its terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 2 contracts
Samples: Selling Dealer Agreement (Navidec Inc), Selling Dealer Agreement (Navidec Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default would reasonably be expected to have a material adverse effect on 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.
2.8 Except as otherwise disclosed in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to subsidiaries which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could would reasonably be expected to result in a material adverse change in the termination of any such agreement condition (financial or any other interruption otherwise), operations or business prospects of the ongoing performance 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 parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise), operations or business prospects of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to Dealer in writing and (iv) the extent then dueIssuer is not in default of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement.
Appears in 2 contracts
Samples: Commercial Paper Dealer Agreement, Commercial Paper Dealer Agreement (Wyndham Worldwide Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite corporate power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agent Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agent Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, and no representation 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 Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, no consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement by the Issuer, except for the filing by the Issuer of each a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not Paying Agent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under (a) the Issuer’s charter documents or by-laws, (b) any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or (c) any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default with respect to clauses (b) or (c) would reasonably be expected to have a Material Adverse Effect.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries (other than that which is disclosed in the Company Information) which would 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, agents or representatives to as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any untrue statement of a material respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, in each case, as to the knowledge of the date it is Issuer, any director, officer, affiliate, agent or shall be dated employee of the Issuer or any of its subsidiaries (or other person acting on behalf of the Issuer or any of its subsidiaries) (i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other similar payment in violation of the law applicable to the Issuer or such subsidiary, or (except as otherwise disclosed to the Funding Agents ii) is aware of or has taken any Purchaseraction, as the case may bedirectly or indirectly, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could would reasonably be expected to result in a violation or a sanction for violation by such persons of the termination OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Convention”), the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. Bribery Act 2010 (the “Bribery Act”) or similar law or regulation of any such agreement other relevant jurisdiction; and the Issuer and its subsidiaries have each conducted their businesses in compliance with the FCPA, the OECD Convention, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer and its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any other interruption arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the ongoing performance Issuer, threatened.
2.13 Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee, affiliate or other person acting on behalf of the Issuer or any of its subsidiaries (i) is currently the subject of any restrictive trade sanctions administered or imposed by the parties 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 each any subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such agreement funding or facilitation, is the subject of their respective obligations thereunder. The Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.14 Neither the Issuer repeats and reaffirms nor any of its subsidiaries nor, to the Funding Agents knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.15 Except as has been disclosed to the Purchasers each Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, with or in Sanctioned Countries or with or in the Russian Federation as long as new investments in the Russian Federation remain prohibited or restricted under Sanctions.
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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing or in the Transaction Documents to which it Company Information and (iv) the Issuer is a party and each other document delivered not in connection therewith default of any of its obligations under (a) the Notes, or herewith(b) in any material respect, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement or the Issuing and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duePaying Agent Agreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Crane Holdings, Co.)
Representations and Warranties of the Issuer. The Issuer hereby represents represents, warrants and warrants covenants to the Funding Agents Indenture Trustee, the Noteholders, the Note Insurer, the Swap Counterparty (unless the Interest Rate Swap Agreement has been terminated and all amounts owed to the Swap Counterparty have been paid in full) and the Purchasers Rating Agencies that as of the date hereof, the Closing Date and each Funding Date: It :
(a) The Issuer is a Delaware statutory trust validly existing and in good standing under the laws of the State its state of Delaware, with organization and has full power and authority under such laws to own its properties assets and conduct its business operate as such properties are currently presently owned and such business is currently conducted or operated, and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all or affect the transactions contemplated hereby and thereby and enforceability or collectibility of the Receivables or any other part of the Trust Property. The Issuer has taken obtained all necessary action qualifications, licenses and approvals in each jurisdiction where the failure to authorize do so would materially and adversely affect the execution, delivery and performance ability of this Agreement and the Issuer to perform its obligations under the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to affect the enforceability or collectibility of its obligations under the Receivables or any indemnification provisions in such agreements to other part of the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. Trust Property.
(b) The execution, delivery and performance of each of this Agreement and by the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each Issuer of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in have been duly authorized by all necessary action on the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties part of the Issuer in the Transaction Documents and do not contravene or constitute a default under (i) any applicable law, rule or regulation, (ii) its organizational documents or (iii) any indenture or agreement or instrument to which it the Issuer is a party and each or by which its properties are bound (other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as than violations of such earlier datelaws, rules, regulations, indentures or agreements which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Issuer's ability to perform its obligations under, the Transaction Documents). Any taxes.
(c) No approval or authorization by, fees and other charges of Governmental Authorities applicable to itor filing with, except for franchise or income taxes, any governmental authority is required in connection with the execution, delivery and performance by it the Issuer of any Transaction Document other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and filings that have previously been made and (iii) approval, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectibility of the Receivables or any other part of the Transferred Assets or would materially and adversely affect the ability of the Issuer to perform its obligations under the Transaction Documents.
(d) Each Transaction Document to which the Issuer is a party constitutes the legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting creditors' rights generally and, if applicable, the rights of creditors of limited liability companies from time to time in effect or by general principles of equity.
(e) There are no actions, suits or proceedings pending or, to the knowledge of the Issuer, threatened against the Issuer before or by any governmental authority that (i) assert the invalidity or unenforceability of this Agreement and or any of the other Transaction Documents Documents, (ii) seeking to which it is a party prevent the issuance of the Notes or otherwise applicable to it in connection with the consummation of any of the transactions contemplated hereby by this Agreement or thereby have been paid any of the other Transaction Documents, (iii) seeking any determination or ruling that would materially and adversely effect the performance by the Issuer of its obligations under this Agreement or any of the other Transaction Documents or the collectibility or enforceability of the Receivables, or (iv) relating to the Issuer that would materially and adversely affect the federal or Applicable Tax State income, excise, franchise or similar tax attributes of the Notes.
(f) The consideration received by the Seller for the Receivables is or will be paid at or prior in full to the Closing Date Seller immediately upon their transfer, and no provision exists whereby the consideration will be modified after the date of transfer. The consideration paid or to be paid for the Receivables is equivalent to the fair market value of the Receivables transferred to the Issuer.
(g) The Issuer has not incurred debt or engaged in activities not related to the transactions contemplated hereunder except as permitted by the Trust Agreement or Section 3.04 hereof.
(h) The Issuer is not insolvent and did not become insolvent as a result of the Grant pursuant to this Indenture; the Issuer is not engaged and is not about to engage in any business or transaction for which any property remaining with the Issuer is unreasonably small capital or for which the remaining assets of the Issuer are unreasonably small in relation to the business of the Issuer or the transaction; the Issuer does not intend to incur, and does not believe or reasonably should not have believed that it would incur, debts beyond its ability to pay as they become due; and the Issuer has not made a transfer or incurred an obligation and does not intend to make such a transfer or incur such an obligation with actual intent to hinder, delay or defraud any entity to which the Issuer was or became, on or after the date that such transfer was made or such obligation was incurred, indebted. The consideration received by the Issuer for the Trust Property is being paid in full to the Issuer immediately upon the Grant thereof to the Indenture Trustee, and no provision exists whereby the consideration will be modified after the date of transfer. The consideration paid for the Trust Property is equivalent to the fair market value thereof.
(i) The absolute assignment of the Receivables and security interest in the Financed Vehicles by the Transferor to the Seller pursuant to the Transfer and Assignment Agreement, the transfer by the Seller to the Issuer pursuant to the Contribution Agreement or the Grant by the Issuer to the Indenture Trustee pursuant to this Indenture is not subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(j) The Trust is not an "investment company" as such term is defined in the 1940 Act.
(k) The principal place of business of the Issuer and the chief executive office of the Issuer are located at the address set forth in this Indenture and there are no other such locations.
(l) Upon the delivery to the Custodian of the Receivables and the Perfection UCCs, the Indenture Trustee, for the benefit of the Noteholders, the Note Insurer and the Swap Counterparty, shall have a first priority perfected security interest in the Receivables and in the proceeds thereof, limited with respect to proceeds to the extent then dueset forth in the UCC as in effect in the applicable jurisdiction. Other than with respect to the Financed Vehicles, all filings (including, without limitation, UCC filings) and other actions as are necessary in any jurisdiction to perfect the ownership, security interest, or other interest of the Indenture Trustee in the related Trust Property, including delivery of the Receivables, the Custodian Files and the related Perfection UCCs to the applicable Custodian, and the payment of any fees, have been made.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, the Notes will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any material contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents subsidiaries which might result in a material adverse change in the condition (financial or representatives to any Funding Agent otherwise) or any Purchaser pursuant to this Agreement operations of the Issuer or the Transaction Documents 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 or shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading.
2.11 Policies and procedures have been implemented and maintained by or on the Issuer’s behalf that are designed to achieve compliance by it and its Subsidiaries and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, giving due regard to the nature of such person’s business and activities. The Issuer and its Subsidiaries, and to the knowledge of the Issuer their respective directors, officers and employees, are in compliance with Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. Neither it nor any of its Subsidiaries nor, to its knowledge any of their respective directors, officers, employees, agents or affiliates, is a person that is, or is owned or controlled by any person that is: (i) the subject of any international economic sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or any governmental authority or regulatory body in Canada (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.
2.12 The Issuer shall not, directly or indirectly, use the proceeds of any Notes, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person, in each case, (A) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions by any person.
2.13 Except as would not, individually or in the aggregate, have a material adverse effect, the operations of the Issuer and its Subsidiaries are conducted in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any applicable related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or regulatory body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.14 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for most recent Private Placement Memorandum, there has been no material adverse change in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits condition (financial or otherwise) or operations of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to Issuer which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result affect the Issuer’s ability to perform its obligations hereunder or under the Notes which has not been disclosed to the Dealer in writing or publicly available and (iv) the termination Issuer is not in default of any such agreement of its obligations hereunder, under the Notes or any other interruption of under the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats Issuing and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duePaying Agency Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Dealer Manager, and each Participating Dealer with whom the Purchasers Dealer Manager has entered into or will enter into a Participating Dealer Agreement, that as of the date hereofhereof and as of each date that Units are sold hereunder; provided, that, to the extent such representations and warranties are given only as of a specified date or dates, the Closing Date Issuer only make such representations and each Funding Date: It is warranties as of such date or dates:
(a) This Agreement has been duly authorized, executed and delivered by the Issuer and constitutes a statutory trust validly existing valid and in good standing under the laws legally binding obligation of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligationsIssuer, enforceable against the Issuer in accordance with their respective its terms, subject, except as the same may be subject to such enforceability, to applicable the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by and (ii) general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding at law or in equity equity).
(b) The Issuer has obtained all necessary approvals, consents, licenses and registrations from any governmental entity or at lawany other person or entity necessary to perform its 10739013 v20 obligations hereunder and shall maintain all such approvals, consents and no representation or warranty is made with respect to registrations in full force and effect during the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each term of this Agreement and the Transaction Documents performance of such obligations will not contravene or result in a breach of any provision of its certificate of incorporation, by-laws or other organizational document or any agreement, instrument, order, law or regulation binding upon it.
(c) The Issuer has complied and will comply in all material respects with all applicable federal and state securities laws in connection with the offering of the Units.
(d) All Offering Materials provided by the Issuer to which it the Dealer Manager comply in all material respects with all requirements of applicable law.
(e) None of the Issuer, any of its predecessors, any director, executive officer, other officer of the Issuer participating in the Private Offering or any beneficial owner of 20% or more of the Issuer’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Issuer in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to 506(d)(1)(viii) under the Securities Act (a party that “Disqualifying Event”), except for a Disqualifying Event covered by Rule 506(d)(2) or Rule 506(d)(3) under the Securities Act. The Issuer has not been duly obtained and exercised reasonable care to determine: (i) the identity of each person that is not an Issuer Covered Person and (ii) whether any Issuer Covered Person is subject to a Disqualifying Event. The Issuer has complied, to the extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Dealer Manager a copy of any disclosures provided thereunder prior to the date hereof or, in the case of a Disqualifying Event occurring after the date hereof, prior to the date of any further offering of the Units.
(f) With respect to each Issuer Covered Person, the Issuer has established procedures reasonably designed to ensure that the Issuer receives notice from each such Issuer Covered Person of any Disqualifying Event relating to that Issuer Covered Person occurring up to and including, the last date on which Units are offered in the Private Offering.
(g) The Issuer will, during the term of this Agreement, cause the Memorandum to comply in all material respects with the Securities Act and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws contain an untrue statement of material fact or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents omit to which it is a party do not violate state any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information material fact required to be furnished by it stated therein or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate necessary in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary order to make the statements contained therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuer makes no warranty or representation with respect to any statement contained in each casethe Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuer by the Dealer Manager or any Participating Dealer expressly for use in the Memorandum.
(h) The Issuer is qualified to do business and is in good standing in every jurisdiction in which the conduct of its business, as described in the Memorandum, requires such qualification, except where the failure to do so would not result in a material adverse effect on the condition, financial or otherwise (a “Material Adverse Effect”), on the Issuer.
(i) Issuer and Adviser has not paid underwriting compensation to Dealer Manager for sale of the date it is Units, or shall underwriting compensation to other broker-dealers that may be dated or (except engaged to sell the Class P-Y Units, that, when considered as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as percentage of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms total proceeds of the Indenture and delivered to and paid for in accordance with this AgreementPrivate Offering, will could be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination deemed unfair or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party unreasonable underwriting compensation or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueviolate FINRA Rules.
Appears in 1 contract
Samples: Dealer Manager Agreement (TriLinc Global Impact Fund LLC)
Representations and Warranties of the Issuer. The Issuer hereby warrants and represents to you, the Administrative Agent and warrants the Issuing Bank, and, each request to issue Commercial Paper Notes shall constitute the Issuer's warranty and representation, as follows:
(a) This Depositary Agreement is, and all Commercial Paper Notes delivered to you as Depositary pursuant to this Depositary Agreement will be, duly authorized, executed and delivered by the Issuer.
(b) The issuance and delivery of the Commercial Paper Notes will not violate any United States state or Federal law or Mexican law, and the Commercial Paper Notes are exempt from registration under the United States Securities Act of 1933, as amended.
(c) This Depositary Agreement constitutes and the Commercial Paper Notes, when issued pursuant to the Funding Agents and the Purchasers that as of the date hereofDTC Documents, will constitute, the Closing Date and each Funding Date: It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its Issuer's legal, valid and binding obligations, obligations enforceable against the Issuer in accordance with their respective terms, subjectexcept as such enforceability may be limited by corporate debt restructuring (concurso mercantil) procedures, as to such enforceabilitybankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencyliquidation, moratorium or other similar laws affecting the creditors' rights of creditors generally and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) The Issuer is a sociedad anonima de capital variable duly organized and validly existing under the laws of Mexico, and no representation liquidation, dissolution, corporate debt restructuring (concurso mercantil) procedures, bankruptcy, winding-up or warranty is made similar proceedings have been instituted with respect to the enforceability Issuer.
(e) The Issuer has, and at all relevant times during the term of its obligations under any indemnification provisions this Depositary Agreement will have, all necessary corporate power and authority (i) to execute, deliver and perform this Depositary Agreement, (ii) to issue the Commercial Paper Notes and (iii) to receive credit as contemplated in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority Reimbursement Agreement.
(f) All action on the part of the Issuer which is required to be obtained in connection with (i) for the authorization of the issuance of the Commercial Paper Notes, (ii) for the authorization, execution, delivery or and performance of each of this Depositary Agreement and (iii) to receive credit as contemplated in the Transaction Documents to which it is a party that Reimbursement Agreement has been taken and such issuance, authorization, execution, delivery and performance do not been duly obtained and that is not and will not be in full force and effect on require the Closing Date, except such that may be required by applicable securities laws approval or UCC-1 Financing Statements as have been prepared for filing. consent of any holder or trustee of any indebtedness or obligations of the Issuer.
(g) The execution, delivery and performance of each of this the Reimbursement Agreement and the Transaction Documents to which it is a party issuance of Commercial Paper Notes by the Issuer in accordance with the Reimbursement Agreement and this Depositary Agreement (i) do not violate and will not contravene any provision of any existing law or regulation applicable to it, any order or decree provision of any court to which it is subject, the Trust Agreement, estatutos sociales (or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance equivalent organizational documents) of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, Issuer effective as of the date it is hereof or shall be dated or (except as otherwise disclosed any Requirement of Law applicable to the Funding Agents or any Purchaser, as the case may be, at such timeIssuer and (ii) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, do not and will be entitled to not conflict with, breach or contravene the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination provisions of any such agreement or any other interruption of Contractual Obligation binding upon the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueIssuer.
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, hereof and the Closing Date and each Funding Borrowing Date: :
(a) It is a statutory business trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction other Related Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction other Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction other Related Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction other Related Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective its terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained by it in connection with the execution, delivery or performance of each of this Agreement and the Transaction other Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities the blue sky laws of any state and except for any UCC filings necessary to perfect the Liens granted pursuant to the Indenture or UCC-1 Financing Statements as have been prepared for filing. mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this Agreement and the Transaction other Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the other Related Documents to which it is a party).
(e) Except as disclosed in writing to the Agent prior to the Closing Date, there is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement Agreement, the Transaction other Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. , and there is no such litigation or proceeding against it or any significant portion of its properties that it expects to have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives Affiliates to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction other Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein therein, in light of the circumstances under which such statements were made, not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, Agent at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to the Agent and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Related Documents. .
(h) Each of the Transaction Related Documents to which it is a party is in full force and effect and no amortization, termination Default or other event or circumstance Event of Default with respect to it has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. and is continuing.
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers Owners each of the representations and warranties of the Issuer made by it in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewiththerewith, and represents that such representations and warranties are true and correct in all material respects.
(except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof,]2 No consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents or representatives to any Funding Agent operations or any Purchaser pursuant to this Agreement business prospects of the Issuer and its subsidiaries, taken as a whole, or the Transaction Documents 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 or shall be inaccurate in any material respectnot an “investment company” within the meaning of the Investment Company Act of 1940, or contains or shall as amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information will contain any untrue statement of a material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is or shall be dated or (except as otherwise disclosed thereof, that, both before and after giving effect to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, issuance and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, hereof and the Closing Date and each Funding Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. .
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. .
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. .
(h) Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or 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 (a “Material Adverse Effect”).
2.8 Except as publicly disclosed in the Issuer’s filings with the SEC prior to the date hereof, there is no litigation or administrative governmental proceeding before any courtfiled, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a Material Adverse Effect.
2.9 The Issuer is not an “investment company” within the meaning of the Investment Company Act of 1940, agents or representatives to as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information contains any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any untrue statement of a material respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading.
(a) To the knowledge of any executive officer, in the general counsel or chief legal officer (each case, as a “Responsible Officer”) of the date it Issuer, neither the Issuer nor any Subsidiary is in violation of any law, rule or shall be dated regulation (including any Anti-Corruption Law, Sanction or (except as otherwise disclosed any law, rule or regulation relating to the Funding Agents or any Purchaser, as the case may be, at such time) as protection of the date so furnished. The Notes have been duly and validly authorizedenvironment or to employee health or safety), and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would be reasonably be expected likely to result in a Material Adverse Effect. “Anti-Corruption Laws” means the termination United States Foreign Corrupt Practices Act of 1977, the UK Xxxxxxx Xxx 0000, or other similar legislation in other jurisdictions. “Sanction(s)” means any such agreement international economic sanction administered or any other interruption enforced by the federal government of the ongoing performance by United States (including without limitation, the parties to each such agreement Office of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each Foreign Assets Control of the representations and warranties United States Department of the Issuer in Treasury (“OFAC”)), the Transaction Documents to which it is a party and each United Nations Security Council, the European Union, Her Majesty’s Treasury or other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duerelevant sanctions authority.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Hartford Financial Services Group Inc/De)
Representations and Warranties of the Issuer. The Issuer hereby -------------------------------------------- represents and warrants to the Funding Agents Class C Purchasers and the Purchasers Administrative Agent that the representations and warranties of the Issuer set forth in the Transfer and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). The Issuer further represents and warrants to, and agrees with, each Class C Purchaser and the Administrative Agent that, as of the date hereof, the Closing Date and each Funding Date: It :
(a) The Issuer is a statutory common law trust duly organized, validly existing and in good standing under the laws of the State of DelawareIllinois, with full power and authority under such laws to own its properties and conduct its business as such properties are currently presently owned and such business is currently presently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Related Documents to which it is a party. It .
(b) The Issuer has the power, power and authority and right to make, execute, deliver and perform this Agreement and the Transaction Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary trust action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a partysuch Related Documents. When executed and delivered, each of this Agreement and the Transaction Documents each Related Document to which it the Issuer is a party will constitute its the legal, valid and binding obligationsagreement of the Issuer, enforceable in accordance with their respective its terms, subject, except as to such enforceability, to enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ ' rights generally and the rights of creditors from time to time in effect. The enforceability of its the Issuer's obligations under such agreements may is also be limited by subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with respect of securities laws violations. violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority governmental authority, bureau or agency is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction or any Related Documents to which it is a party that has not been duly obtained and that which is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities the blue sky laws of any state and except those which the failure to obtain individually or UCC-1 Financing Statements as in the aggregate, would not have been prepared for filing. a material adverse effect on the Issuer, the Seller or FCNB or the transactions contemplated by, or Issuer's ability to perform its obligations under, this Agreement or the Related Documents.
(d) The execution, delivery and performance of each of this Agreement and the Transaction Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to itthe Issuer, any order or decree of any court to which it the Issuer is subject, the Trust Agreement, its governing instrument or any mortgage, indenture, contract or other agreement to which it the Issuer is a party or by which it or any significant portion of its the Issuer's properties is bound. bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on the Issuer or the transactions contemplated by, or the Issuer's ability to perform its respective obligations under, this Agreement or the Related Documents.)
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or, to its Knowledgethe knowledge of the Issuer, threatened threatened, against it, the Issuer with respect to this Agreement and the Transaction Documents to which it is a partyRelated Documents, the transactions contemplated hereby or thereby or the issuance of the Series 2001-A Notes. No report, statement, exhibit and there is no such litigation or other written information required to be furnished by it proceeding against the Issuer or any significant portion of the Issuer properties, in each case which would have a material adverse effect on the Issuer or the transactions contemplated by, or the ability of the Issuer to perform its Affiliatesobligations under, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents Related Documents.
(f) The Indenture is duly qualified or shall is not required to be inaccurate in any material respectqualified under the Trust Indenture Act of 1939, or contains or shall contain any material misstatement of fact, or omits or shall omit and the Issuer is not required to state a material fact or any fact necessary to make be registered under the statements contained therein not misleading, in each case, as of Investment Company Act.
(g) On the date it hereof, no Series 2001-A Pay Out Event has occurred and is continuing, and no event, act or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaseromission has occurred and is continuing which, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms lapse of time, the Indenture and delivered to and paid for in accordance with this Agreementgiving of notice or both, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is would constitute a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueSeries 2001-A Pay Out Event.
Appears in 1 contract
Samples: Class C Note Purchase Agreement (First Consumers Master Trust)
Representations and Warranties of the Issuer. The Issuer hereby represents makes the following representations and warrants warranties to and agrees with the Funding Agents Company for the benefit of MBIA, the Indenture Trustee and the Purchasers Noteholders, on which representations and warranties the Company relies in entering into this Loan Sale Agreement with the Issuer and MBIA relies in issuing the Class A Note Insurance Policy. The Company agrees that any breach by the Issuer of any such representations and warranties shall not limit or excuse the full performance of the Company's obligations hereunder. Such representations and warranties speak as of the date hereofClosing Date, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Closing Date Loan Contracts and each Funding Date: It the security interest in the related Vehicles:
(a) The Issuer has been duly organized and is a statutory trust validly existing and in good standing as a corporation under the laws of the Issuer State of DelawareIncorporation, with full corporate power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to executeproperties, deliver and perform its obligations under this Agreement and the Transaction Documents and to transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and is in good standing in each State in which the nature of its business requires it to be so qualified, except where failure to so qualify would not have a party. It has material adverse effect on the power, authority and right ability of the Issuer to make, execute, deliver and perform this Agreement and its obligations under the Transaction Documents.
(b) The Transaction Documents to which it is a party have been duly authorized, executed and all delivered by the transactions contemplated hereby and thereby and has taken Issuer by all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and legally binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject, subject as to such enforceability, enforcement to applicable bankruptcy, reorganization, insolvency, moratorium reorganization and other similar laws of general applicability relating to or affecting creditors’ ' rights generally from time and to time general principles of equity regardless of whether enforcement is sought in effect. The enforceability a court of equity or law.
(c) There are no proceedings or investigations to which the Issuer, or any of the Issuer's Affiliates, is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (a) asserting the invalidity of this Loan Sale Agreement, (b) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Loan Sale Agreement, or (c) seeking any determination or ruling that would materially and adversely affect the performance by the Issuer of its obligations under such agreements may also be limited by general principles of equityunder, regardless of whether such or the validity or enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, this Loan Sale Agreement.
(d) All approvals, authorizations, consents, orders or registration withother actions of any Person or of any court, any Governmental Authority is governmental agency or body or official, required to be obtained in connection with the execution, execution and delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing DateLoan Sale Agreement, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at taken or obtained on or prior to the Closing Date to Date.
(e) The principal place of business and chief executive office of the extent then dueIssuer is 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
(f) The Issuer will treat the Notes as debt of the Issuer for all Federal, state and local income tax purposes.
Appears in 1 contract
Samples: Loan Sale Agreement (Autoinfo Inc)
Representations and Warranties of the Issuer. (a) The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It is a statutory trust duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power Delaware and authority under such laws to own its properties and in each jurisdiction where the conduct of its business as requires such properties are currently owned and such business is currently conducted and license, qualification or good standing, except where the failure to executebe so licensed or qualified or in good standing would not adversely affect the ownership or use of its assets, deliver and perform its obligations under this Agreement and the validity or enforceability of the Transaction Documents to which it is a party. It , or the ability of such Issuer to perform its obligations hereunder or thereunder.
(b) The Issuer has the power, power and authority to execute and right to make, execute, deliver and perform this Agreement and the Transaction Documents and all other documents and agreements contemplated hereby and thereby to which it is a party party, as well as to carry out the terms hereof and all the transactions contemplated hereby and thereby and thereof.
(c) The Issuer has taken all necessary action action, including but not limited to all requisite corporate action, to authorize the execution, delivery and performance of this Agreement and the Transaction Documents and all other documents and agreements contemplated hereby and thereby to which it is a party. When executed and delivered, delivered by the Issuer each of this Agreement and the Transaction Documents to which it is a party will constitute its the legal, valid and binding obligations, obligation of the Issuer enforceable in accordance with their respective terms, its terms subject, as to such enforceabilityenforcement, to applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws relating to now or hereafter in effect affecting the enforcement of creditors’ rights generally from time to time in effect. The general, and except as such enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of equity (whether such enforceability is considered in a proceeding suit at law or in equity equity).
(d) All authorizations, licenses, permits, certificates, franchises, consents, approvals and undertakings which are required to be obtained by the Issuer under any applicable law which are material to (i) the conduct of its business, (ii) the ownership, use, operation or at law, and no representation maintenance of its properties or warranty is made with respect to (iii) the enforceability performance by the Issuer of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought or in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, have been received and all such authorizations, licenses, permits, certificates, franchises, consents, approvals and undertakings are in full force and effect.
(e) The execution, issuance and delivery of, and performance by the transactions contemplated hereby Issuer of its obligations under, the Transaction Documents and any and all instruments or thereby or the issuance of the Notes. No report, statement, exhibit or other written information documents required to be furnished by it executed or delivered pursuant to or in connection herewith or therewith were and are within the powers of the Issuer and will not violate any provision of any law, regulation, decree or governmental authorization applicable to the Issuer or its governing instrument, and will not violate or cause a default under any provision of any contract, agreement, mortgage, indenture or other undertaking to which the Issuer is a party or which is binding upon the Issuer or any of its Affiliates, agents property or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstandingassets, and will be entitled not result in the imposition or creation of any lien, charge or encumbrance upon any of the properties or assets of the Issuer pursuant to the benefits provisions of any such contract, agreement, mortgage, indenture or undertaking, other than as specifically set forth herein.
(f) There are no legal, governmental or regulatory proceedings pending to which the IndentureIssuer is a party or to which any of its property is subject, this Agreement and which if determined adversely to the other Transaction Documents. Each Issuer would individually or in the aggregate have a material adverse effect on the performance by the Issuer of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination consummation of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby hereunder or thereby have been paid or will be paid at or prior thereunder, and to the Closing Date best of its knowledge, no such proceedings are threatened or contemplated.
(g) The Notes are not required to be registered pursuant to the extent then dueSecurities Act, and neither the Issuer nor the Collateral is required to be registered as an investment company pursuant to the Investment Company Act and this Indenture is not required to be qualified under the U.S. Trust Indenture Act of 1939, as amended.
Appears in 1 contract
Samples: Indenture (MCG Capital Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agent Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agent Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement, except as may be required by the securities or Blue Sky laws of each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default is reasonably expected to have a material adverse effect on 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 Agent Agreement.
2.8 Except as otherwise disclosed by the Issuer in the Company Information (as defined below), there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which is reasonably expected to result in a material adverse change in the financial condition of the Issuer or its subsidiaries, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement taken as a whole, or the Transaction Documents 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 shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading.
2.11 Except for prior conduct that is de minimis in amount and nature, considered individually or in the aggregate, none of the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, or employee of the Issuer or any of its subsidiaries, or any agent, affiliate or other person associated with or acting on behalf of the Issuer or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any law or regulation applicable to the Issuer or any of its subsidiaries implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under the Xxxxxxx Xxx 0000 of the United Kingdom, or any other anti-bribery or anti-corruption laws applicable to the Issuer or any of its subsidiaries. The Issuer and its subsidiaries have instituted, and maintain and enforce, policies and procedures reasonably designed to promote and ensure compliance with all anti-bribery and anti-corruption laws applicable to the Issuer or any of its subsidiaries.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance, in each caseall material respects, with financial recordkeeping and reporting requirements applicable to the Issuer or any of its subsidiaries, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of jurisdictions where the Issuer or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the "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, to the knowledge of the Issuer, any director, officer, employee, agent or affiliate of the Issuer or any of its subsidiaries is currently the subject of any sanctions administered or enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury), or other sanctions authority with jurisdiction over the Issuer or any of its subsidiaries (collectively, “Sanctions” and such persons, “Sanctioned Persons”), nor is the Company or any of its subsidiaries, located, organized or resident in a country or territory that is the subject of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”); and the Company will not 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 or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as dealer, advisor, investor or otherwise) of Sanctions.
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 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 any Sanctioned Country.
2.15 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 it is and time thereof, that, both before and after giving effect to such sale and issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date and time as if made on and as of such date, as the case may be, and at such time, (ii) as in the case of an issuance of Notes, the Notes being issued on such date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance or sale of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement condition (financial or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties otherwise), operations or business prospects of the Issuer which has not been disclosed to the Dealer in writing (which writing may be distributed through electronic posting on a website, provided that the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as Dealer receives written notification of such earlier date). Any taxesposting) and (iv) the Issuer is not in default of any of its obligations hereunder, fees under the Notes or the Issuing and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duePaying Agent Agreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Lam Research Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agent Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agent Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement, except as may be required by the securities or Blue Sky laws of each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or 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.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents operations or representatives to any Funding Agent or any Purchaser pursuant to this Agreement business prospects of the Issuer or the Transaction Documents 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 shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement condition (financial or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties otherwise), operations or business prospects of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to Dealer in writing and (iv) the extent then dueIssuer is not in default of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agent Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite corporate power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this to
2.2 This Agreement and the Transaction Documents to which it is a party. It has the powerIssuing and Paying Agent Agreement have been duly authorized, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no representation 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 Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, no consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement by the Issuer, except for the filing by the Issuer of each a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not Paying Agent Agreement by the Issuer, nor the issuance of the Notes in accordance with the Issuing and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or 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.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries (other than that which is disclosed in the Company Information) which might result in a material adverse change in the condition (financial or otherwise), agents operations or representatives to any Funding Agent or any Purchaser pursuant to this Agreement business prospects of the Issuer or the Transaction Documents 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 or shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information.
2.11 Neither the Issuer nor any of its subsidiaries nor, in each case, as to the knowledge of the date it is Issuer, any director, officer, agent (when acting as an agent with respect to the Issuer’s business) or shall be dated employee of the Issuer or any of its subsidiaries (acting on behalf of the Issuer or any of its subsidiaries)
(i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other similar payment in violation of the law applicable to the Issuer or such subsidiary, or (except as otherwise disclosed to the Funding Agents ii) is aware of or has taken any Purchaseraction, as the case may bedirectly or indirectly, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could would reasonably be expected to result in a violation or a sanction for violation by such persons of the termination 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 such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents relevant jurisdiction; and the Purchasers Issuer and its subsidiaries have each of conducted their businesses in compliance with the representations FCPA, the Bribery Act and warranties any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.12 The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Transaction Documents Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to which it is a party Intercept and each other document delivered in connection therewith or herewithObstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and represents that such representations the applicable money laundering statutes of jurisdictions where the Issuer and warranties are true and correct (except where such representation or warranty specifically relates to any earlier dateits subsidiaries conduct business, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party rules and regulations thereunder and any related or otherwise applicable to it in connection similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer and its subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with the transactions contemplated hereby or thereby have been paid or will be paid at or prior respect to the Closing Date Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
2.13 Except to the extent then due.permissible under applicable laws, neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Collateral Manager as follows:
(i) The Issuer has been duly formed and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It is a statutory trust validly existing and in good standing as a limited liability company under the laws of the State of Delaware, with has full limited liability company power and authority under such laws to own its properties assets and the securities proposed to be owned by it and included in the Assets and to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business as such properties are currently owned and such business is currently conducted and to executerequires, deliver and perform or the performance of its obligations under this Agreement Agreement, the Indenture, the other Transaction Documents or the Debt would require such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(ii) The Issuer has full limited liability company power and authority to execute and deliver this Agreement, the Indenture, the other Transaction Documents and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver Debt and perform this Agreement all obligations required hereunder and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby thereunder and has taken all necessary action to authorize this Agreement, the Indenture, the other Transaction Documents and the Debt on the terms and conditions hereof and thereof and the execution, delivery and performance of this Agreement, the Indenture, the other Transaction Documents and the Debt and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other person including, without limitation, members and creditors of the Issuer, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with this Agreement, the Indenture, the other Transaction Documents or the issuance of the Debt, is required by the Issuer in connection with this Agreement, the Indenture, the other Transaction Documents or the Debt or the execution, delivery, performance, validity or enforceability of this Agreement, the Indenture, the other Transaction Documents or the Debt or the obligations imposed upon it hereunder or thereunder. This Agreement, the Indenture, the other Transaction Documents and the Debt constitute, and each instrument or document required hereunder or thereunder, when executed and delivered hereunder or thereunder, shall constitute, the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (A) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Issuer and (B) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iii) The execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed documents and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is instruments required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and hereunder will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not (x) violate (A) any provision of any existing law or regulation applicable to itbinding on the Issuer, (B) any order order, judgment, award or decree of any court to which it is subjectcourt, arbitrator or governmental authority binding on the Issuer, (C) the organizational documents of, or any securities issued by, the Trust AgreementIssuer, or (D) of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets is or may be bound, the violation of which would have, in the case of any of (A) through (D) above, a material adverse effect on the business, operations, assets or financial condition of the Issuer, and (y) result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertaking (other than the lien of the Indenture).
(iv) The Issuer is not an “investment company” which is required to be registered under the Investment Company Act.
(v) The Issuer is not in violation of its organizational documents or in breach or violation of or in default under the Indenture, the other Transaction Documents or any contract or agreement to which it is a party or by which it or any significant portion of its properties is assets may be bound. There is no litigation , or administrative proceeding before any applicable statute or any rule, regulation or order of any court, tribunal government agency or governmental body having jurisdiction over the Issuer or its properties, the breach or violation of which or default under which would have a material adverse effect on the validity or enforceability of this Agreement or the Indenture or the performance by the Issuer of its duties hereunder or thereunder.
(vi) [Reserved].
(vii) [Reserved].
(viii) There is not pending or, to its Knowledgethe Issuer’s knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its AffiliatesAffiliates any action, agents suit or representatives to proceeding at law or in equity or before any Funding Agent court, tribunal, governmental body, agency or official or any Purchaser pursuant arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement.
(ix) True and complete copies of the Transaction Documents is executed on the Closing Date and the governing instruments of the Issuer have been made available to the Collateral Manager or shall be inaccurate its counsel (and the Issuer agrees to deliver a true and complete copy of each amendment to the documents referred to in any material respect, this clause (ix) to the Collateral Manager as promptly as practicable after its adoption or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each caseexecution).
(x) The Offering Circular, as of the date it is or shall be dated or thereof (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) including as of the date so furnishedof any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled preceding sentence does not apply to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueCollateral Manager Information.
Appears in 1 contract
Samples: Collateral Management Agreement (Varagon Capital Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust limited partnership duly formed and validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its formation and has all the requisite limited partnership power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. ).
2.3 The Notes have been duly authorized by the Issuer, and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture issued and delivered to as provided in the Issuing and paid for in accordance with this Paying Agency Agreement, will be duly and validly issued and outstandingdelivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and will be entitled subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the benefits exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the IndentureNotes 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 Assuming the offer and sale of the Notes in the manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained or made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the other Transaction Documents. Each Issuing and Paying Agency Agreement, nor the issuance of the Transaction Documents Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any consensual mortgage, lien or similar encumbrance upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or default under, as the case may be, any of the terms of the Issuer’s certificate of limited partnership or agreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is in full force bound, or any statutory law or regulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default could reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and effect its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no amortizationlitigation or governmental proceeding pending, termination or other event to the knowledge of the Issuer threatened, against or circumstance has occurred thereunder affecting the Issuer or in connection therewith that any of its subsidiaries which could reasonably be expected to result in a material adverse change in the termination of any such agreement financial condition or any other interruption operations of the ongoing performance 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” 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 Dealer Information.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer in the Transaction Documents to and its subsidiaries taken as a whole which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Managing Broker-Dealer that:
2.1 The Issuer has been duly organized and the Purchasers that is validly existing as of the date hereof, the Closing Date and each Funding Date: It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full has all requisite power and authority under such laws to own its properties enter into this Agreement and has all requisite power and authority to conduct its business as such properties are currently owned and such business is currently conducted and to executedescribed in the Memorandum.
2.2 No defaults exist in the due performance or observance of any material obligation, deliver and perform its obligations under this Agreement and the Transaction Documents term, covenant or condition of any agreement or instrument to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court.
2.3 Subject to Section 3.3, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance each of the Notes. No reportMemorandum and the Approved Sales Literature (as defined below), statementwhen used in connection with the Memorandum, exhibit or other written information required to be furnished by does not include nor will it include, through the Offering Termination Date, any untrue statement of a material fact nor does it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall will it omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein not misleading.
2.4 No consent, approval, authorization or other order of any governmental authority is required in each caseconnection with the execution or delivery by the Issuer of this Agreement or the issuance and sale by the Issuer of the Securities, except such as may be required under the Securities Act or applicable state securities laws.
2.5 At the time of the issuance of the Securities, the Securities will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Memorandum. The issuance, sale and delivery of the Securities is not subject to any preemptive rights. The Securities conform in all material respects to the description thereof contained in the Memorandum.
2.6 As of the Effective Date and at the time of any sale of the Securities (collectively, the “Applicable Date”), that none of the Issuer, its trustees (other than the required Delaware administrative trustee), executive officers, directors, general partners, managing members or officers participating in the Offering or persons who own 20% or more of the Issuer:
2.6.1 Has been convicted, within 10 years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the Securities and Exchange Commission (the “SEC”); or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
2.6.2 Is subject to any order, judgment or decree of any court of competent jurisdiction, entered within five years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the date it is purchase or shall be dated sale of any security;
(b) Involving the making of any false filing with the SEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
2.6.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(1) Association with an entity regulated by such commission, authority, agency or officer;
(2) Engaging in the business of securities, insurance or banking; or
(3) Engaging in savings association or credit union activities; or
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative or deceptive conduct entered within 10 years before any Applicable Date.
2.6.4 Is subject to an order of the SEC pursuant to sections 15(b) or 15B(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) or section 203(e) or (except f) of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) that, as otherwise disclosed of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer or investment advisor;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any xxxxx stock.
2.6.5 Is subject to any order of the SEC entered within five years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, section 17(a)(1) of the Securities Act, section 10(b) of the Exchange Act and 17 CFR 240.10b-5, section 15(c)(1) of the Exchange Act and section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
2.6.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
2.6.7 Has filed (as a registrant or issuer), or was or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the SEC that, within five years of any Applicable Date, was the subject of a refusal order, stop order or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
2.6.8 Is subject to a United States Postal Service false representation order entered within five years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
2.6.9 Subject to the Funding Agents or any Purchaser, as the case may be, at such time) as performance of the date so furnished. Issuer’s obligations hereunder, the holders of the Securities will have the rights described in the Memorandum.
2.6.10 The Notes have Issuer agrees to immediately notify the Managing Broker-Dealer if there is a violation or potential violation of the representations set forth in this Section 2.6 during the Offering Period.
2.7 This Agreement has been duly and validly authorized, and, when executed and authenticated delivered by the Issuer and constitutes the valid agreement of the Issuer, enforceable in accordance with the terms its terms, subject to applicable bankruptcy and similar laws and principals of the Indenture equity. The execution and delivered to and paid for in accordance with delivery of this Agreement, will be duly the consummation of the transactions contemplated and validly issued and outstanding, the compliance with the terms hereof by the Issuer do not and will be entitled to not conflict with or constitute a default under (i) the benefits organizational documents of the IndentureIssuer, this Agreement and the (ii) any indenture, mortgage, deed of trust, lease or other Transaction Documents. Each of the Transaction Documents agreement or instrument to which it the Issuer is a party is as of the Effective Date, or (iii) any law, order, rule or regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Issuer except, in full force the case of clauses (ii) and effect and no amortization(iii) only, termination for such conflicts or other event or circumstance has occurred thereunder or in connection therewith defaults that could not reasonably be expected to result have, individually or in the termination aggregate, a material adverse effect.
2.8 There are no actions or proceedings against, or investigations of, the Issuer, pending or, to the knowledge of the Issuer, threatened, before any court, arbitrator, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the issuance of the Securities or the consummation of any such agreement or any other interruption of the ongoing transactions contemplated by this Agreement, (iii) that might materially and adversely affect the performance by the parties Issuer of its obligations under, or the validity or enforceability of, this Agreement, or the Securities or (iv) seeking to each such agreement affect adversely the federal income tax attributes of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and Securities except as described in the Purchasers each of Memorandum.
2.9 Except as otherwise stated, the representations and warranties made in this Section 2 are made as of the Issuer in the Transaction Documents to which it is a party date hereof and each other document delivered in connection therewith or herewith, and represents that such shall be continuing representations and warranties are true and correct (except where such throughout the Offering Period. In the event that any of these representations or warranties becomes untrue or is incorrect, the Issuer will immediately notify the Managing Broker-Dealer in writing of the fact which makes the representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise untrue or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueincorrect.
Appears in 1 contract
Samples: Managing Broker Dealer Agreement (Cantor Fitzgerald Income Trust, Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof,] No consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents or representatives to any Funding Agent operations or any Purchaser pursuant to this Agreement business prospects of the Issuer and its subsidiaries, taken as a whole, or the Transaction Documents 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 or shall be inaccurate in any material respectnot an “investment company” within the meaning of the Investment Company Act of 1940, or contains or shall as amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information will contain any untrue statement of a material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such timei) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of given by the Issuer set forth in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are this Section 2 remain true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation on and warranty is repeated and affirmed as of such earlier date)date as 2 For use where the parties wish to fully rely on the safe harbor in Rule 506. Any taxes, fees and other charges See Addendum paragraph 2. 3 The phrase “or an entity controlled by an investment company” is not included in this representation. See the Bond Market Association Model Commercial Paper Dealer Agreement (the “BMA Model’”) Guidance Note to Section 2.11 for a description of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of limited circumstances where this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will phrase should be paid at or prior to the Closing Date to the extent then dueincluded.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes, and except as have already been obtained, taken or made, as the case may be, with respect to the Federal Energy Regulatory Commission and the Montana Public Service Commission.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents operations or representatives to any Funding Agent or any Purchaser pursuant to this Agreement business prospects of the Issuer or the Transaction Documents 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 or shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement condition (financial or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties otherwise), operations or business prospects of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Northwestern Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Amendment Closing Date and each Funding Date: It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Samples: Note Funding Agreement (Bluegreen Vacations Holding Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust limited partnership duly formed and validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its formation and has all the requisite limited partnership power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. ).
2.3 The Notes have been duly authorized by the Issuer, and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture issued and delivered to as provided in the Issuing and paid for in accordance with this Paying Agency Agreement, will be duly and validly issued and outstandingdelivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and will be entitled subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the benefits exemption from registration contained in Section 4(a)(2) thereof, and no indenture in respect of the IndentureNotes 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 Assuming the offer and sale of the Notes in the manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained or made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payments and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the other Transaction Documents. Each Issuing and Paying Agency Agreement, nor the issuance of the Transaction Documents Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any mortgage, lien, charge or similar encumbrance upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or default under, as the case may be, any of the terms of the Issuer’s certificate of limited partnership or agreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is in full force bound, or any statutory law or regulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default could reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and effect its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no amortizationlitigation or governmental proceeding pending, termination or other event to the knowledge of the Issuer threatened, against or circumstance has occurred thereunder affecting the Issuer or in connection therewith that any of its subsidiaries which could reasonably be expected to result in a material adverse change in the termination of any such agreement financial condition or any other interruption operations of the ongoing performance Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” 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 Dealer Information.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer in the Transaction Documents to and its consolidated subsidiaries taken as a whole which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, hereof and the Closing Date and each Funding Borrowing Date: :
(a) It is a statutory business trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Related Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Related Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Related Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the Related Documents to which it is a party).
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. , and there is no such litigation or proceeding against it or any significant portion of its properties that would have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Related Documents. .
(h) Each of the Transaction Related Documents to which it is a party is in full force and effect and no amortization, termination default or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers Owners each of the representations and warranties of the Issuer in the Transaction Related Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
(k) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, hereof and the Closing Date and each Funding Borrowing Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction other Related Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction other Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction other Related Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction other Related Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective its terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained by it in connection with the execution, delivery or performance of each of this Agreement and the Transaction other Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities the blue sky laws of any state and except for any UCC filings necessary to perfect the Liens granted pursuant to the Indenture or UCC-1 Financing Statements as have been prepared for filing. mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this Agreement and the Transaction other Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the other Related Documents to which it is a party).
(e) Except as disclosed in writing to the Agent prior to the Closing Date, there is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement Agreement, the Transaction other Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. , and there is no such litigation or proceeding against it or any significant portion of its properties that it expects to have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives Affiliates to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction other Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein therein, in light of the circumstances under which such statements were made, not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, Agent at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to the Agent and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Related Documents. .
(h) Each of the Transaction Related Documents to which it is a party is in full force and effect and no amortization, termination Default or other event or circumstance Event of Default with respect to it has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. and is continuing.
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers Owners each of the representations and warranties of the Issuer made by it in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewiththerewith, and represents that such representations and warranties are true and correct in all material respects.
(except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation 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 warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise) or operations of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as described in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to subsidiaries which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could would reasonably be expected to result in a material adverse change in the termination of any such agreement condition (financial or any other interruption otherwise) or operations of the ongoing performance 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 parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise) or operations of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to Dealer in writing and (iv) the extent then dueIssuer is not in default of any of its obligations hereunder or under the Notes.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Cisco Systems Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof,] No consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents operations or representatives to any Funding Agent or any Purchaser pursuant to this Agreement business prospects of the Issuer or the Transaction Documents 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 or shall be inaccurate in 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 respect, or contains or shall contain any material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it is thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or shall be dated or supplement, (except i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as otherwise disclosed to the Funding Agents or any Purchaserof such date as if made on and as of such date, as (ii) in the case may beof an issuance of Notes, at the Notes being issued on such time) as of the date so furnished. The Notes have been duly and validly authorizedissued and constitute legal, andvalid and binding obligations of the Issuer, when executed and authenticated enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the terms case of an issuance of Notes, since the date of the Indenture and delivered to and paid for in accordance with this Agreementmost recent Private Placement Memorandum, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and there has been no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result material adverse change in the termination of any such agreement condition (financial or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties otherwise), operations or business prospects of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to Dealer in writing and (iv) the extent then dueIssuer is not in default of any of its obligations hereunder or under the Notes or the Issuing and Paying Agency Agreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Dentsply International Inc /De/)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. .
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. .
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. .
(h) Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby -------------------------------------------- represents and warrants to the Funding Agents Class C Purchasers and the Purchasers Administrative Agent that the representations and warranties of the Issuer set forth in the Transfer and Servicing Agreement, the Indenture and the other Related Documents are true and correct as of the date hereof (except for representations or warranties which relate to a specific date, which shall be true and correct as of such date). The Issuer further represents and warrants to, and agrees with, each Class C Purchaser and the Administrative Agent that, as of the date hereof, the Closing Date and each Funding Date: It :
(a) The Issuer is a statutory common law trust duly organized, validly existing and in good standing under the laws of the State of DelawareIllinois, with full power and authority under such laws to own its properties and conduct its business as such properties are currently presently owned and such business is currently presently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Related Documents to which it is a party. It .
(b) The Issuer has the power, power and authority and right to make, execute, deliver and perform this Agreement and the Transaction Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary trust action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a partysuch Related Documents. When executed and delivered, each of this Agreement and the Transaction Documents each Related Document to which it the Issuer is a party will constitute its the legal, valid and binding obligationsagreement of the Issuer, enforceable in accordance with their respective its terms, subject, except as to such enforceability, to enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws of general applicability relating to or affecting creditors’ ' rights generally and the rights of creditors from time to time in effect. The enforceability of its the Issuer's obligations under such agreements may is also be limited by subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with respect of securities laws violations. violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority governmental authority, bureau or agency is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction or any Related Documents to which it is a party that has not been duly obtained and that which is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities the blue sky laws of any state and except those which the failure to obtain individually or UCC-1 Financing Statements as in the aggregate, would not have been prepared for filing. a material adverse effect on the Issuer or FCNB or the transactions contemplated by, or Issuer's ability to perform its obligations under, this Agreement or the Related Documents.
(d) The execution, delivery and performance of each of this Agreement and the Transaction Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to itthe Issuer, any order or decree of any court to which it the Issuer is subject, the Trust Agreement, its governing instrument or any mortgage, indenture, contract or other agreement to which it the Issuer is a party or by which it or any significant portion of its the Issuer's properties is bound. bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on the Issuer or the transactions contemplated by, or the Issuer's ability to perform its respective obligations under, this Agreement or the Related Documents.)
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body presently pending or, to its Knowledgethe knowledge of the Issuer, threatened threatened, against it, the Issuer with respect to this Agreement and the Transaction Documents to which it is a partyRelated Documents, the transactions contemplated hereby or thereby or the issuance of the Series 2001-A Notes. No report, statement, exhibit and there is no such litigation or other written information required to be furnished by it proceeding against the Issuer or any significant portion of the Issuer properties, in each case which would have a material adverse effect on the Issuer or the transactions contemplated by, or the ability of the Issuer to perform its Affiliatesobligations under, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents Related Documents.
(f) The Indenture is duly qualified or shall is not required to be inaccurate in any material respect, or contains or shall contain any material misstatement qualified under the Trust Indenture Act of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding1939, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in is not required to be registered under the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct Investment Company Act.
(except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to g) On the Closing Date and after giving effect to the extent then duepurchase of the Class C Noteholders' Interest and the issuance of the Series 2001-A Notes, no Series 2001-A Pay Out Event has occurred and is continuing, and no event, act or omission has occurred and is continuing which, with the lapse of time, the giving of notice or both, would constitute a Series 2001-A Pay Out Event.
Appears in 1 contract
Samples: Class C Note Purchase Agreement (First Consumers Master Trust)
Representations and Warranties of the Issuer. (a) The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
(i) The Issuer is a Delaware statutory trust duly created and validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own governing its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a partycreation. It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and The Issuer has taken all necessary action to authorize the execution, delivery and performance of this Agreement Indenture by it and has the power and authority to execute, deliver and perform this Indenture and all the transactions contemplated hereby, including, but not limited to, the power and authority to transfer the Tax Liens and the Transaction Documents other property conveyed to which it is a party. When executed the Trust Estate hereunder in accordance with this Indenture;
(ii) Assuming the due authorization, execution and delivered, each delivery of this Agreement Indenture by each other party hereto, this Indenture and all of the Transaction Documents to which it is a party will constitute its obligations of the Issuer hereunder are the legal, valid and binding obligationsobligations of the Issuer, enforceable in accordance with their respective termsthe terms of this Indenture, subjectexcept as such enforcement may be limited by bankruptcy, as to such enforceability, to applicable bankruptcyinsolvency, reorganization, insolvencyreceivership, moratorium and or other laws relating to or affecting creditors’ the rights of creditors generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited and by general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in equity or at law, );
(iii) The execution and no representation or warranty is made with respect to delivery of this Indenture and the enforceability performance of its obligations under any indemnification provisions in such agreements to hereunder by the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and Issuer will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate conflict with any provision of any existing law or regulation applicable to it, any order or decree of any court to which it the Issuer is subject, or conflict with, result in a breach of or constitute a default under any of the Trust Agreementterms, conditions or provisions of this Indenture, any Transaction Document or any mortgage, indenture, contract or other agreement or instrument to which it the Issuer is a party or by which it is bound, or any significant portion order or decree applicable to the Issuer, or result in the creation or imposition of its properties any lien on any of the Issuer’s assets or property (other than pursuant to this Indenture). No consent, approval, authorization or order of any court or governmental agency or body is bound. There required for the execution, delivery and performance by the Issuer of this Indenture; and
(iv) Except as described in the Private Placement Memorandum or Schedule A hereto, there is no litigation action, suit or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgethe best knowledge of the Issuer, overtly threatened against itthe Issuer in any court or by or before any other governmental agency or instrumentality.
(b) The Issuer hereby represents and warrants that (1) the information about the Tax Liens set forth in the Tax Lien Schedule was or will be correct in all material respects as of the Closing Date, and (2) as to each Tax Lien assigned or to be assigned hereunder, as of the Closing Date, except as otherwise specified herein:
(i) The Issuer was the sole owner and holder of such Tax Lien;
(ii) The Issuer had full right and authority to assign such Tax Lien;
(iii) The Issuer assigns such Tax Lien free and clear of any and all liens, pledges, charges, security interests or any other statutory impediments to transfer of any nature encumbering such Tax Lien (but subject to the right of redemption by the related Property Owner), except for liens that will be discharged on the Closing Date by the application of the proceeds of the sale thereof;
(iv) The assignment of such Tax Lien by the Issuer does not contravene or conflict with any laws, rules or regulations or any contractual or other restriction, limitation or encumbrance applicable to the Issuer;
(v) Such Tax Lien arose by operation of state law and the City Admin. Code and was a legal, valid, binding and enforceable lien on the related Property and an enforceable obligation of the related Property Owner to pay the Redemptive Value thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally, and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(vi) To the knowledge of the Issuer, without inquiry, the unpaid real property taxes, assessments, sewer rents, sewer surcharges, and water rents included in such Tax Lien represented a first priority lien on the underlying Property, subject only to Subsequent Taxes and Assessments, and other charges included in such Tax Lien represented a first priority lien on the underlying Property subject only to Subsequent Taxes and Assessments and to the lien of such unpaid real property taxes, assessments, sewer rents, sewer surcharges, and water rents on the underlying Property, and, except in each case, with respect to this Agreement a Bankruptcy Tax Lien, such Bankruptcy Tax Lien may have been subordinated to the Transaction Documents lien of other creditors under the provisions of the Bankruptcy Code, including but not limited to which it Section 724(b) thereof; any tax liens that rank pari passu with the unpaid real property taxes, assessments, sewer rents, sewer surcharges, or water rents included in such Tax Lien have been identified on the Tax Lien Schedule;
(vii) To the knowledge of the Issuer, without inquiry, such Tax Lien had not been discharged (or disallowed (in whole or in part)) in a Bankruptcy Proceeding;
(viii) To the knowledge of the Issuer, without inquiry, such Tax Lien had not been compromised, adjusted or modified (including by extension of time or payment or the granting of any discounts, allowances or credits);
(ix) To the knowledge of the Issuer, without inquiry, such Tax Lien was not subject to a foreign government’s diplomatic immunity from enforcement or bilateral treaty with the United States of America;
(x) Except with respect to the Article 7 Tax Liens (as defined in the applicable Purchase Agreement), to the knowledge of the Issuer, without inquiry, no right of rescission, setoff, counterclaim or defense had been asserted with respect to such Tax Lien;
(xi) To the knowledge of the Issuer, without inquiry, such Tax Lien did not encumber a multiple dwelling owned by a company organized pursuant to Article XI of the private housing finance law that is a partyresidential condominium or residential cooperative;
(xii) To the knowledge of the Issuer, without inquiry, with respect to all Bankruptcy Tax Liens, the transactions contemplated Issuer had filed appropriate and timely proofs of claim and up to the Closing Date had taken all other necessary actions to preserve and maintain the related claims; and
(xiii) To the knowledge of the Issuer, without inquiry, none of the Tax Liens related to a Property owned by a Property Owner that is subject to any Bankruptcy Proceeding commenced prior to October 22, 1994.
(c) The representations and warranties with respect to the Tax Liens set forth in Section 2.04(b) hereof are substantially identical to and, with respect to representations and warranties 2.04(b)(v) through (xi) and 2.04(b)(xiii), made solely in reliance on certain representations and warranties made by the City to the Issuer in the First Sale Agreement and the Second Sale Agreement, as applicable. The Issuer hereby or thereby assigns to the Indenture Trustee (to be included in the Trust Estate) for the benefit of the Bondholders all of its rights and remedies with respect to the breach of any representations and warranties of the City under the applicable Purchase Agreements.
(d) (i) It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the respective Tax Lien Certificates to the Indenture Trustee or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Collateral Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaserand Custodian, as the case may be, at such time) as until the termination of this Indenture, and shall inure to the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms benefit of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement Trustee and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueBondholders.
Appears in 1 contract
Samples: Indenture
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and limitations on rights to indemnity and contributions imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1.6 hereof, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 [Except as provided in Section 1.6(j) hereof,]2 No consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), or operations or business prospects of the Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliatessubsidiaries which might result in a material adverse change in the condition (financial or otherwise), agents or representatives to any Funding Agent operations or any Purchaser pursuant to this Agreement business prospects of the Issuer and its subsidiaries, taken as a whole, or the Transaction Documents 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 or shall be inaccurate in any material respectnot an “investment company” within the meaning of the Investment Company Act of 1940, or contains or shall as amended.3
2.10 Neither the Private Placement Memorandum nor the Company Information will contain any untrue statement of a material misstatement of fact, fact or omits or shall omit to state a material fact required to be stated therein or any fact necessary to make the statements contained therein therein, in light of the circumstances under which they were made, not misleading, in each case.
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 it thereof, that, both before and after giving effect to such issuance and 2 For use where the parties wish to fully rely on the safe harbor in Rule 506. See Addendum paragraph 2. 3 The phrase “or an entity controlled by an investment company” is or shall be dated or not included in this representation. See the Bond Market Association Model Commercial Paper Dealer Agreement (except as otherwise disclosed the “BMA Model”) Guidance Note to the Funding Agents or any Purchaser, as the case may be, at such time) as Section 2.11 for a description of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with limited circumstances where this Agreement, will phrase should be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueincluded.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (FMC Technologies Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Indenture Trustee and for the Purchasers benefit of the Bondholders that as of the date hereof, the Closing Date and each Funding Date: :
(a) It is a statutory trust duly formed, validly existing and in good standing as a business trust under the laws of the State of Delaware, with full power and authority .
(b) It is duly authorized under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement applicable law and the Transaction Documents Deposit Trust Agreement to which it is a party. It has create and issue the powerBonds, authority to execute and right deliver this Indenture, the other documents referred to make, execute, deliver and perform this Agreement and the Transaction Documents herein to which it is a party and all instruments included in the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to Trust Estate which it is a party. When has executed and delivered, each of and that all corporate action and governmental consents, authorizations and approvals necessary or required therefor have been duly and effectively taken or obtained. The Bonds, when issued, will be, and this Agreement Indenture and the Transaction Documents to which it is a party will constitute its legalsuch other documents are, valid and legally binding obligations, obligations of the Issuer enforceable in accordance with their respective terms.
(c) The Indenture constitutes its valid, legal, binding and enforceable obligation, in its individual capacity, enforceable against it in accordance with its terms, subjectexcept as such terms may be limited by bankruptcy, as to such enforceability, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium or other similar laws affecting the rights of creditors generally and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless .
(d) The execution and delivery of whether such enforceability is considered in a proceeding in equity or at lawthe Indenture by it, and no representation or warranty is made with respect to the enforceability performance of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and hereunder will not be in full force and effect on violate the Closing Dateprovisions of its certificate of incorporation or bylaws, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate conflict with any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreementor conflict with, result in a breach of, or constitute a default under any mortgageof the terms, indentureconditions or provisions of, contract any agreement or other agreement instrument to which it is a party or by which it is bound, or any significant portion order or decree applicable to it or result in the creation or imposition of any Lien on any of the its properties is bound. There is no litigation assets or administrative proceeding before any courtproperty, tribunal or governmental body pending or, which would materially and adversely affect the ability of it to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, carry out the transactions contemplated hereby by this Indenture or thereby such other documents executed in connection herewith; no consent, approval, authorization or the issuance order of the Notes. No report, statement, exhibit or other written information required to be furnished by it filing with or any of its Affiliates, agents or representatives notice to any Funding Agent court or any Purchaser pursuant to this Agreement governmental agency or the Transaction Documents body is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid required for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it Indenture.
(e) There is a party no action, suit or otherwise applicable to proceeding pending against it in connection with any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of it to carry out the transactions contemplated hereby or thereby have been paid or will be paid at or by this Indenture.
(f) Immediately prior to its Grant of the Closing Date Trust Estate provided for herein, it had good title to, and was the sole owner of, each Pledged Security, free and clear of any pledge, lien, encumbrance or security interest.
(g) The Indenture Trustee has a valid and enforceable first priority security interest in the Trust Estate, subject only to exceptions permitted hereby.
(h) It is a QRS.
(i) This Indenture is not required to be qualified under the extent then dueTIA and the Issuer is not required to be registered as an "investment company" under the Investment Company Act.
Appears in 1 contract
Samples: Terms Indenture (Criimi Mae Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to warrants, for the Funding Agents and the Purchasers that as benefit of the date hereofRemarketing Agent, the Closing Date and each Funding Date: It as remarketing agent, that:
(a) The Issuer is a statutory trust validly public benefit corporation duly organized and existing and in good standing under the laws of the State of Delaware, with New York and has full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted enter into the Indenture, the Installment Sale Agreement, the Bond Purchase Agreement, this Remarketing Agreement and to executeissue the Bonds and to carry out the provisions hereof and thereof.
(b) The Indenture, deliver and perform its obligations under the Installment Sale Agreement, the Bond Purchase Agreement, this Remarketing Agreement and the Transaction Documents to which it is a party. It has the powerBonds have been duly authorized, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivereddelivered by the Issuer and, each assuming the due execution and delivery of this Agreement such agreements by the other parties thereto, are valid special obligations legally binding upon the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, except as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and enforceability may be limited by bankruptcy or other laws relating to or affecting the enforcement of creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited or by general principles of equityequity and public policy.
(c) Except for all consents, regardless of whether such enforceability is considered in a proceeding in equity approvals or at lawauthorizations of, and no representation or warranty is made with respect to the enforceability of its obligations declarations or filings under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with federal or state securities laws violations. No or "blue sky" laws, no consent, license, approval or authorization of, or registration declaration or filing with, any Governmental Authority governmental authority or any other third party is a condition to the execution and delivery by the Issuer of the Indenture, the Installment Sale Agreement, the Bond Purchase Agreement or this Remarketing Agreement, or is required to be obtained in connection with the execution, issuance and delivery by the Issuer of the instruments contemplated hereby. To the Issuer's knowledge, neither the execution and delivery of the Indenture, the Installment Sale Agreement, the Bond Purchase Agreement, this Remarketing Agreement or performance the Bonds nor consummation of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and transaction contemplated hereby or thereby, will not be in full force and effect constitute on the Closing Datepart of the Issuer a violation of or will conflict or will be inconsistent with, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The executionwill result in any breach of any of the terms of, delivery and performance of each of this Agreement and the Transaction Documents to which it is or will constitute a party do not violate default under, any provision of any existing law or regulation any applicable to itregulation, any order order, unit or decree of any court or governmental authority or any indenture, mortgage, deed of trust, agreement or other instrument to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is may be bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. .
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. .
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. .
(h) Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust corporation duly organized, validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its incorporation and has all the requisite power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered 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 subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no representation indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except for the notice on Form D, which the Issuer will file with the SEC not later than 15 days after the first sale of Notes in accordance with Rule 503 under the Securities Act, no consent or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization action of, or filing or registration with, any Governmental Authority governmental or public regulatory body or authority, including the SEC, is required to be obtained 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 each the various states in connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained Issuing and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, indenturelien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the Issuer’s charter documents or by-laws, any contract or other agreement instrument to which it the Issuer is a party or by which it or any significant portion of its properties property is bound. There , or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial or otherwise), operations or business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as described in the Company Information, there is no litigation or administrative governmental proceeding before any courtpending, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance knowledge of the Notes. No reportIssuer threatened, statement, exhibit against or other written information required to be furnished by it affecting the Issuer or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to subsidiaries which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in a material adverse change in the termination of any such agreement condition (financial or any other interruption otherwise), operations or business prospects of the ongoing performance 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.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial or otherwise), operations or business prospects of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to Dealer in writing and (iv) the extent then dueIssuer is not in default of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agency Agreement.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Church & Dwight Co Inc /De/)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, hereof and the Closing Date and each Funding Borrowing Date: :
(a) It is a statutory business trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Related Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Related Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Related Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Related Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the Related Documents to which it is a party).
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. , and there is no such litigation or proceeding against it or any significant portion of its properties that would have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Related Documents. .
(h) Each of the Transaction Related Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. .
(i) The Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers Noteholders each of the representations and warranties of the Issuer in the Transaction Related Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
(k) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then due.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents makes the following representations and warrants to the Funding Agents warranties to, and the Purchasers that agreements with, CFC on and as of the date hereofClosing Date, the Closing Date and on and as of each Funding Purchase Date: It :
(a) The Issuer is a statutory trust limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with and is duly qualified and is in good standing under the laws of each other jurisdiction in which its business or activities requires such qualification except where failure to so qualify would not have a Material Adverse Effect, and has full power and authority under such laws to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted conducted, and to executehad at all relevant times, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. It has the now has, power, authority and legal right to makeacquire, own, sell, convey and assign the Loans and Related Interests transferred to the Trustee.
(b) The Issuer is duly qualified to do business as a foreign corporation in good standing under the laws of each other jurisdiction in which the ownership or lease of its property or the conduct of its business or activities requires such qualification.
(c) The Issuer has full power and authority to execute, deliver and perform this Agreement and the Transaction Documents other Program Agreements to which it is a party party, and all to carry out its terms and their terms respectively; the transactions contemplated hereby Issuer has full power and thereby authority to grant, convey and assign the interest in the Loans and Related Interests to be granted, conveyed and assigned to the Trustee by it and has taken duly authorized such grant, conveyance and assignment to the Trustee by all necessary action to authorize action; and the execution, delivery and performance of this Agreement and the Transaction Documents other Program Agreements to which it is a party have been duly authorized by the Issuer by all necessary entity action.
(d) The ownership of, transfer to or receipt by the Issuer of the Loans and Related Interests pursuant to this Agreement and the consummation of the transactions contemplated in this Agreement and the other Program Agreements to which it is a party. When executed , will not conflict with or result in a breach of any of the terms or provisions of, or constitute (with or without notice of the expiration of any grace or cure period) a default under, or result in the creation or imposition of any Lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of, any indenture, mortgage, deed of trust, or other agreement or instrument to which the Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the Operating Agreement of the Issuer or any law, order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and deliveredno consent, each approval, authorization, order, registration or qualification of this or with any court or any such regulatory authority or other governmental agency or body is required for the acquisition of the Loans and Related Interests hereunder other than such as have been obtained or will be obtained by the Issuer.
(e) This Agreement and the Transaction Documents other Program Agreements to which it is a party have been duly authorized, executed and delivered by the Issuer and will effect a valid sale, transfer and assignment of the Loans and Related Interests, and this Agreement and the Program Agreements to which the Issuer is a party, when duly authorized, executed and delivered, will constitute its legal, valid and binding obligationsobligations of the Issuer, enforceable against the Issuer and creditors of or purchasers from the Issuer in accordance with their respective terms, subject, except as to such enforceability, to enforceability may be limited by applicable bankruptcy, reorganization, receivership, insolvency, moratorium and other laws relating to or similar Laws affecting creditors’ rights generally from time generally, and to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law).
(f) No injunction, writ, restraining order or other order of any nature exists which would adversely affect the Issuer’s ownership of the Loans and no representation Related Interests or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or Issuer’s performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions transaction contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then duehereunder.
Appears in 1 contract
Samples: Transfer and Sale Agreement (A-Mark Precious Metals, Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents and the Purchasers that as of the date hereof, the Closing Date and each Funding Date: It that:
2.1 The Issuer is a statutory trust limited partnership duly formed and validly existing and in good standing under the laws of the State jurisdiction of Delaware, with full its formation and has all the requisite limited partnership power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under the Notes, this Agreement and the Transaction Documents to which it is a party. It has the power, authority Issuing and right to make, execute, deliver and perform this Paying Agency Agreement.
2.2 This Agreement and the Transaction Documents to which it is a party Issuing and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the executionPaying Agency Agreement have been duly authorized, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement delivered by the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, obligations of the Issuer enforceable against the Issuer in accordance with their respective termsterms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, equity (regardless of whether such enforceability enforcement is considered sought in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. ).
2.3 The Notes have been duly authorized by the Issuer, and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture issued and delivered to as provided in the Issuing and paid for in accordance with this Paying Agency Agreement, will be duly and validly issued and outstandingdelivered by the Issuer and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and will be entitled subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the benefits exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the IndentureNotes 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 Assuming the offer and sale of the Notes in the manner contemplated hereby, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to be obtained or made by the Issuer under any statute or regulation applicable to it to authorize its execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, and except where the failure to obtain such consent or action or make such filing or registration could not reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payments and other obligations under this Agreement, the Notes and the Issuing and Paying Agency Agreement.
2.7 Neither the execution and delivery of this Agreement and the other Transaction Documents. Each Issuing and Paying Agency Agreement, nor the issuance of the Transaction Documents Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result, pursuant to the express provisions of any agreement to which it is a party, in the creation or imposition of any mortgage, lien, charge or similar encumbrance upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or default under, as the case may be, any of the terms of the Issuer’s certificate of limited partnership or agreement of limited partnership, any contract or instrument to which the Issuer is a party or by which it or its property is in full force bound, or any statutory law or regulation applicable to it, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or default could reasonably be expected to have a material adverse effect on the financial condition or operations of the Issuer and effect its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment and other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no amortizationlitigation or governmental proceeding pending, termination or other event to the knowledge of the Issuer threatened, against or circumstance has occurred thereunder affecting the Issuer or in connection therewith that any of its subsidiaries which could reasonably be expected to result in a material adverse change in the termination of any such agreement financial condition or any other interruption operations of the ongoing performance Issuer and its consolidated subsidiaries taken as a whole or the ability of the Issuer to perform its payment or other material obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” 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 Dealer Information.
2.11 Each (a) issuance of Notes by the parties to each such agreement Issuer hereunder and (b) amendment or supplement of their respective obligations thereunder. The the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer repeats and reaffirms to the Funding Agents Dealer, as of the date thereof, that, both before and the Purchasers each of 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, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer in the Transaction Documents to and its consolidated subsidiaries taken as a whole which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have has not been paid or will be paid at or prior disclosed to the Closing Date to the extent then dueDealer in writing.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to warrants, for the Funding Agents and the Purchasers that as benefit of the date hereofRemarketing Agent, the Closing Date and each Funding Date: It as remarketing agent, that:
(a) The Issuer is a statutory trust validly public instrumentality constituting a body corporate and politic duly organized and existing and in good standing under the laws of the State of Delaware, with New York and has full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted enter into the Indenture, the Installment Sale Agreement, this Remarketing Agreement and to executeissue the Bonds and to carry out the provisions hereof and thereof.
(b) The Indenture, deliver and perform its obligations under the Installment Sale Agreement, this Remarketing Agreement and the Transaction Documents to which it is a party. It has the powerBonds have been duly authorized, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivereddelivered by the Issuer and, each assuming the due execution and delivery of this Agreement such agreements by the other parties thereto, are valid special obligations legally binding upon the Issuer and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, except as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and enforceability may be limited by bankruptcy or other laws relating to or affecting the enforcement of creditors’ ' rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited or by general principles of equityequity and public policy.
(c) Except for all consents, regardless of whether such enforceability is considered in a proceeding in equity approval or at lawauthorizations of, and no representation or warranty is made with respect to the enforceability of its obligations declaration or filing under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with federal or state securities laws violations. No or "blue sky" laws, no consent, license, approval or authorization of, or registration declaration or filing with, any Governmental Authority governmental authority or any other third party is a condition to the execution and delivery by the Issuer of the Indenture, the Installment Sale Agreement or this Remarketing Agreement, or is required to be obtained in connection with the execution, issuance and delivery by the Issuer of the instruments contemplated hereby. To the Issuer's knowledge, neither the execution and delivery of the Indenture, the Installment Sale Agreement, this Remarketing Agreement or performance the Bonds nor consummation of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and transaction contemplated hereby or thereby, will not be in full force and effect constitute on the Closing Datepart of the Issuer a violation of or will conflict or will be inconsistent with, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. The executionwill result in any breach of any of the terms of, delivery and performance of each of this Agreement and the Transaction Documents to which it is or will constitute a party do not violate default under, any provision of any existing law or regulation any applicable to itregulation, any order order, unit or decree of any court or governmental authority or any indenture, mortgage, deed of trust, agreement or other instrument to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it Issuer is a party or by which it or any significant portion of its properties is may be bound. There .
(d) To the Issuer's knowledge, there is no litigation action, suit, proceeding, inquiry or administrative proceeding investigation, at law or in equity, or before or by any court, tribunal public board or governmental body pending orbody, as to which the Issuer has been served or otherwise received official notice, nor is any such action, suit, proceeding, inquiry or investigation threatened, which challenges the validity of or seeks to enjoin the execution and delivery by the Issuer of, or the performance by the Issuer of its Knowledge, threatened against it, obligations with respect to this Agreement the Transaction Documents to which it is a partyto, the transactions contemplated hereby or thereby or Indenture, the issuance of Installment Sale Agreement, the Notes. No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding Agent or any Purchaser pursuant to this Remarketing Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents or any Purchaser, as the case may be, at such time) as of the date so furnished. The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The Issuer repeats and reaffirms to the Funding Agents and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Date to the extent then dueBonds.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Funding Agents Agent and the Purchasers that as of the date hereof, the Closing Amendment Date and each Funding Date: :
(a) It is a statutory trust validly existing and in good standing under the laws of the State of Delaware, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is currently conducted and to execute, deliver and perform its obligations under this Agreement and the Transaction Documents to which it is a party. .
(b) It has the power, authority and right to make, execute, deliver and perform this Agreement and the Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Transaction Documents to which it is a party. When executed and delivered, each of this Agreement and the Transaction Documents to which it is a party will constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations. .
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the execution, delivery or performance of each of this Agreement and the Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Amendment Date, except such that may be required by applicable securities laws or UCC-1 Financing Statements as have been prepared for filing. .
(d) The execution, delivery and performance of each of this Agreement and the Transaction Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, the Trust Agreement, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound. .
(e) There is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its Knowledgeknowledge, threatened against it, with respect to this Agreement the Transaction Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes. .
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates, agents or representatives to any Funding the Agent or any Purchaser pursuant to this Agreement or the Transaction Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Funding Agents Agent or any Purchaser, as the case may be, at such time) as of the date so furnished. .
(g) The Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Indenture, this Agreement and the other Transaction Documents. .
(h) Each of the Transaction Documents to which it is a party is in full force and effect and no amortization, termination or other event or circumstance has occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the parties to each such agreement of their respective obligations thereunder. The .
(i) Except as set forth Schedule A hereto, the Issuer repeats and reaffirms to the Funding Agents Agent and the Purchasers each of the representations and warranties of the Issuer in the Transaction Documents to which it is a party and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects (except where such representation or warranty specifically relates to any earlier date, in which case such representation and warranty is repeated and affirmed as of such earlier date). .
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Closing Amendment Date to the extent then due.
Appears in 1 contract
