REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate and the U.K. Company that: (a) The Property Trustee is a banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of this Distribution Trust Agreement. (b) The execution, delivery and performance by the Property Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (c) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement. (d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during the term of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators. (f) The Property Trustee is a state-chartered bank and at the time of appointment has securities rated in one of the three highest categories by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000.
Appears in 1 contract
Samples: Distribution Trust Agreement (Def Exchangeable Preferred Trust)
REPRESENTATIONS AND WARRANTIES OF THE. Property Owner Trustee and the -------------------------------------------------------------- Delaware TrusteeNon-Georgia Trust Company. ---------------- The Property Trustee Non-Georgia Trust Company and the Delaware TrusteeOwner Trustee hereby severally represent and warrant that, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate and the U.K. Company thatClosing Date:
(a) The Property Trustee the Non-Georgia Trust Company is a national banking corporation with trust powers, association duly organized, validly existing and in good standing under the laws of Delawarethe United States of America, with trust has the corporate power and authority authority, as Owner Trustee and/or in its individual capacity to execute and deliverthe extent expressly provided herein or in the Trust Agreement, to conduct its business as presently conducted, to own or hold under lease its properties and to carry out enter into and perform its obligations under the terms of this Distribution Trust Agreement., this Agreement and each of the other Operative Documents to which it is a party;
(bi) The execution, delivery and performance by the Property Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly authorized, executed and delivered by the Property TrusteeNon-Georgia Trust Company, and (ii) assuming the due authorization, execution and delivery hereof of the Trust Agreement by the other parties heretoOwner Participant, the Trust Agreement constitutes a legal, valid and binding obligation of the Property TrusteeNon-Georgia Trust Company, enforceable against it in its individual capacity or as Owner Trustee, as the case may be, in accordance with its terms, subject to applicable except as the same may be limited by bankruptcy, insolvency, reorganization, moratoriumarrangement, insolvency, and moratorium or other similar laws relating to or affecting creditors' the rights of creditors generally and to by general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).equity;
(ci) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly authorized, executed and delivered by the Delaware Owner Trustee, and (ii) assuming the due authorization, execution and delivery hereof of this Agreement by each party hereto other than the other parties heretoOwner Trustee and the Non-Georgia Trust Company, this Agreement constitutes a legal, valid and binding obligation of the Delaware Non-Georgia Trust Company and the Owner Trustee, enforceable against it the Non-Georgia Trust Company or as Owner Trustee, as the case may be, in accordance with its terms, subject to applicable except as the same may be limited by bankruptcy, insolvency, reorganization, moratoriumarrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(d) (i) each of the other Operative Documents to which the Owner Trustee is a party has been duly authorized, executed and delivered by the Owner Trustee, and (ii) assuming the due authorization, execution and delivery of each of the other Operative Documents by each party thereto other than the Owner Trustee, each of the other Operative Documents to which the Owner Trustee is a party constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, and reorganization, arrangement, moratorium or other similar laws relating to or affecting creditors' the rights of creditors generally and to by general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).equity;
(e) The Delaware upon the execution and delivery of the Loan Certificate by the Owner Trustee in accordance with the Loan Agreement and payment therefor in accordance with the terms of this Agreement, the Loan Certificate will constitute the legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity;
(f) the execution and delivery by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, of the Trust Agreement, this Agreement and the other Operative Documents to which it is a party, the consummation by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, of the transactions contemplated hereby and thereby, and the compliance by the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, with the terms and provisions hereof and thereof, do not and will not contravene any Applicable Law of the United States of America governing its banking or trust powers or the State of Connecticut governing the Non-Georgia Trust Company or the banking or trust powers of the Non-Georgia Trust Company, or the Trust Agreement, or its organizational documents or by-laws, or contravene the provisions of, or constitute a default by the Non-Georgia Trust Company under, or result in the creation of any Facility Lessor's Lien attributable to it upon the Trust Estate or any indenture, mortgage or other material contract, agreement or instrument to which the Non-Georgia Trust Company is a party or by which the Non-Georgia Trust Company or its property is bound; provided, however, that no representation is made with respect to the right, power or authority of the Non-Georgia Trust Company or the Owner Trustee to act as operator of the Facility following an Event of Default;
(g) no authorization or approval or other action by, and no notice to or filing or registration with, any Connecticut Governmental Entity or federal Governmental Entity governing its banking or trust powers is required for the due execution, delivery or performance by the Non-Georgia Trust Company or the Owner Trustee, as the case may be, of the Trust Agreement, this Agreement or the other Operative Documents to which the Owner Trustee is an entity a party, other than any such authorization or approval or other action or notice or filing as has been duly obtained, taken or given;
(h) there is no pending or, to the knowledge of the Non-Georgia Trust Company threatened, action, suit, investigation or proceeding against the Non-Georgia Trust Company either in its individual capacity or as Owner Trustee, before any Governmental Entity which, if determined adversely to it, would materially adversely affect the ability of the Non-Georgia Trust Company, in its individual capacity or as Owner Trustee, as the case may be, to perform its obligations under the Trust Agreement, this Agreement or the other Operative Documents to which has its it is a party or would materially adversely affect the Facility, the Rocky Mountain Site or any interest therein or part thereof or the security interest of the Lender in the Collateral;
(i) the Facility Lessor's right, title and interest in and to the Trust Estate is free of any Facility Lessor's Liens attributable to the Non-Georgia Trust Company;
(j) the chief executive office and principal place of business in the State of Delaware. If at any time during the term of the Distribution TrustNon-Georgia Trust Company where the Owner Trustee will keep its corporate records concerning the Facility, the Delaware Trustee ceases Rocky Mountain Site and the Operative Documents is located at Hartford, Connecticut; and
(k) immediately prior to have its principal place of business in Delawarethe Closing, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators.
(f) The Property Owner Trustee is not an "electric utility" or a state-chartered bank and at the time of appointment has securities rated in one of the three highest categories by "public utility" or a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000"public utility holding company" under any Applicable Law.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee Trading Company and the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee Trading Manager; Covenants of the Trading Manager and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate and the U.K. Company that:Trading Company.
(a) The Property Trustee Trading Company and the Trading Manager represent and warrant to the Trading Advisor, as follows:
(i) The Trading Company has provided to the Trading Advisor the Offering Memoranda in the form first issued. The Trading Company will ensure that the Members will not utilize any amendment or supplement to the Offering Memoranda unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has approved any description of the Trading Advisor and the Trading Program contained therein;
(ii) Each Members’ organizational agreement provides for the subscription for and sale of the Units in the respective Member; all material actions required to be taken by each Member as a condition to the sale of its Units to qualified subscribers therefor has been, or prior to each closing described in the Member’s Confidential Private Placement Memorandum shall have been taken; and, upon payment of the consideration therefor specified in each accepted subscription agreement in such form as attached to the respective Member’s Confidential Private Placement Memorandum, the Units will constitute valid interests in the Member. Each Member is in material compliance with all laws, rules, regulations and orders of any governmental agency or self-regulatory organization applicable to the Member’s business and the offering, sale, issuance and distribution of its Units;
(iii) The Trading Company is a banking corporation with trust powerslimited liability company duly formed pursuant to its Certificate of Formation, duly organized, Operating Agreement and the Delaware Limited Liability Company Act and is validly existing and in good standing under the laws of Delaware, the State of Delaware with trust full power and authority to execute and deliver, engage in the trading of futures interests and to carry out engage in its other contemplated activities as described in the Offering Memoranda; the Trading Company is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Trading Company’s ability to perform its obligations under the terms of this Distribution Trust Agreement.hereunder;
(biv) The execution, delivery and performance by the Property Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee Trading Manager is duly organized, organized and validly existing and in good standing as a banking corporation limited liability company under the laws of the State of Delaware, with trust Delaware and is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the Trading Manager’s ability to perform its obligations hereunder;
(v) The Trading Company and the Trading Manager have full power and authority under applicable law to execute conduct their business and deliverto perform their respective obligations under this Agreement and as described in the Offering Memoranda;
(vi) As of the date hereof, the Offering Memoranda contain all statements and information required to be included therein by the CEAct or other applicable law and at all times subsequent thereto up to and including each closing, the Offering Memoranda will comply in all material respects with the requirements of the rules of the NFA, the CEAct or other applicable laws. The Offering Memoranda as of the initial closing (as described therein), date of issue, and at each closing will not contain any misleading or untrue statements of a material fact or omit to carry out state a material fact required to be stated therein or necessary to make the statements therein not misleading. Any supplemental sales literature, when read in conjunction with the Offering Memoranda, will not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. This representation and perform warranty shall not, however, apply to any statement or omission in the Offering Memoranda or supplemental sales literature made in reliance upon and in conformity with information furnished by and relating to the Trading Advisor, its obligations under the terms of, the Distribution Trust Agreement.trading methods or its trading performance;
(dvii) The executionSince the respective dates as of which information is given in the Offering Memoranda, delivery and performance by there has not been any material adverse change in the Delaware Trustee condition, financial or otherwise, business or prospects of this Distribution Trust the Trading Manager or the Trading Company, whether or not arising in the ordinary course of business;
(viii) This Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly validly authorized, executed and delivered by the Delaware Trustee, Trading Manager on behalf of the Trading Company and assuming due authorization, execution the Trading Manager and delivery hereof by the other parties hereto, constitutes a legalvalid, valid binding and binding obligation enforceable agreement of the Delaware Trustee, enforceable against it Trading Company and the Trading Manager in accordance with its terms;
(ix) The execution and delivery of this Agreement, subject the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Offering Memoranda will not violate, or constitute a breach of, or default under, the Trading Manager’s certificate of formation or bylaws, or the Trading Company’s Certificate of Formation or Operating Agreement, or any material agreement or instrument by which either the Trading Manager or the Trading Company, as the case may be, is bound or any material order, rule, law or regulation applicable to the Trading Manager or the Trading Company of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Manager or the Trading Company;
(x) Except as set forth in the Offering Memoranda, there has not been in the five years preceding the date of the Offering Memoranda and there is not pending or, to the Trading Manager’s knowledge, threatened, any action, suit or proceeding at law or in equity before or by any court or by any federal, state, municipal or other governmental body or any administrative, self-regulatory or commodity exchange organization to which the Trading Manager, any Trading Manager Principal (as hereinafter defined) or the Trading Company is or was a party, or to which any of the assets of the Trading Manager or the Trading Company is or was subject; and neither the Trading Manager nor any of the principals, as defined in CFTC Reg. 4.10 under the CEAct of the Trading Manager (“Trading Manager Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization, whether U.S. or foreign, regarding non-compliance by the Trading Manager or the Trading Manager Principals or the Trading Company with the CEAct, the Securities Act of 1933, as amended, or any other applicable bankruptcylaws which are material to an investor’s decision to invest in a Member;
(xi) The Trading Manager and the Trading Manager Principals have all federal, reorganizationstate and foreign governmental, moratorium, insolvencyregulatory and exchange approvals and licenses, and other similar laws affecting creditors' rights generally have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business and to general principles act as described in the Offering Memoranda or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of equity and this Agreement. The Trading Manager’s principals identified in the discretion Offering Memoranda are all of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).Trading Manager Principals;
(exii) The Delaware Trustee Trading Company is an entity which has and shall remain in compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or self-regulatory organization applicable to its principal place of business as described in the State Offering Memoranda and this Agreement;
(xiii) The assets of Delaware. If at any time the Trading Company do not and shall not constitute “plan assets” for the purpose of the U.S. Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended; and
(xiv) The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the Distribution Trustforegoing representations or warranties inaccurate, the Delaware Trustee ceases to have its principal place of business in Delaware, Trading Manager shall promptly notify the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent Trading Advisor of the Administratorsnature of such event.
(fb) Covenants of the Trading Manager and the Trading Company. The Trading Manager and the Trading Company covenants and agrees that:
(i) The Property Trustee is Trading Manager and the Trading Company shall maintain all registrations and memberships necessary for the Trading Manager and the Trading Company to continue to act as described herein and in the Offering Memoranda and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a state-chartered bank materially adverse effect on the Trading Manager and at the time Trading Company’s ability to act as described herein and in the Offering Memoranda;
(ii) The Trading Manager and the Trading Company shall inform the Trading Advisor immediately as soon as the Trading Manager, the Trading Company or any of appointment has securities rated in one their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the three highest categories Trading Manager or the Trading Company. The Trading Manager and the Trading Company shall also inform the Trading Advisor immediately if the Trading Manager or the Trading Company or any of their officers become aware of any material breach of this Agreement by a nationally recognized statistical rating organization the Trading Manager or the Trading Company; and
(iii) The Trading Company and the Trading Manager will furnish to the Trading Advisor copies of the Offering Memoranda, and all amendments and supplements thereto, in each case as soon as available and will ensure that the Members do not use any such amendments or supplements as to which the Trading Advisor in writing has capital and surplus of at least $50,000,000reasonably objected.
Appears in 1 contract
Samples: Advisory Agreement
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and ---------------------------------------------------------- the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each -------------------- severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate Depositor and the U.K. Company that:Securityholders that (each such representation and warranty made by the Property Trustee and the Delaware Trustee being made only with respect to itself):
(a) The the Property Trustee is a banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of New York;
(b) the Delaware Trustee is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full corporate power, with trust power authority and authority legal right to execute and deliverexecute, and to carry out deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the terms of this Distribution Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee it of this Distribution Trust Agreement;
(d) this Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly authorized, executed and delivered by the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation each of the Property Trustee, Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of the Property Trustee and the Delaware Trustee enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, insolvency, moratorium and other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).principles;
(ce) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by each of the Property Trustee and the Delaware Trustee of this Distribution Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and does not require any approval of stockholders of the Property Trustee or the Delaware Trustee and such execution, delivery and performance will not (i) violate either of the Property Trustee's or the Delaware Trustee; and 's charter or by-laws, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Property Trustee or the Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States, the State of New York or the State of Delaware, as the case may be, governing the banking, corporate, or trust powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee;
(f) neither the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Distribution Trust Agreement has been duly executed and delivered nor the consummation of any of the transactions by the Property Trustee or the Delaware Trustee (as appropriate in context) contemplated herein or therein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to, any governmental authority or agency under any existing federal law governing the banking, corporate or trust powers of the Property Trustee or the Delaware Trustee, as the case may be, under the laws of the United States, the State of New York or the State of Delaware;
(g) there are no proceedings pending or, to the best of each of the Property Trustee's and assuming due authorizationthe Delaware Trustee's knowledge, execution threatened against or affecting the Property Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal which, individually or in the aggregate, would materially and delivery hereof by adversely affect the other parties heretoTrust or would question the right, constitutes a legal, valid power and binding obligation authority of the Property Trustee or the Delaware Trustee, enforceable against it in accordance with as the case may be, to enter into or perform its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during the term of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators.
(f) The Property Trustee is a state-chartered bank and at the time of appointment has securities rated in obligations as one of the three highest categories by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000Trustees under this Trust Agreement.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and ---------------------------------------------------------- the -------------------------------------------------------------- Delaware Trustee. ---------------- -------------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate and the U.K. Company that:
(a) The Property Trustee is a banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of DelawareNew York, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of this Distribution Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has has, and at all times during the term of the Distribution Trust will maintain, its principal place of business in the State of Delaware. If at any time during the term of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators.
(f) The Property Trustee is a state-chartered bank and at the time of appointment has securities rated in one of the three highest categories by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000.
Appears in 1 contract
Samples: Distribution Trust Agreement (Anz Exchangeable Preferred Trust)
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate and the U.K. Company that:
(a) The Property Trustee Issuerthe Issuer is a banking corporation with trust powers, duly organized, validly incorporated and existing and in good standing under the laws of Delawarethe jurisdiction in which it is incorporated; the execution and delivery of, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of this Distribution Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee Issuer of this Distribution Trust Subscription Agreement has been duly authorized by all necessary corporate action on the part of the Property TrusteeIssuer; and this Distribution Trust Subscription Agreement has been duly executed and delivered by the Property Trustee, Issuer and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation agreement of the Property Trustee, Issuer enforceable against it in accordance with its terms; the Issuer s of Alberta, subject to applicable bankruptcyNova Scotia, reorganization, moratorium, insolvency, Ontario and other similar laws affecting creditors' rights generally British Columbia and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation compliance with its obligations under the laws of Applicable Securities Laws in all material respects; the State of Delaware, with trust Issuer has the power and authority to execute create, issue and deliver, and to carry out deliver the Purchased Securities and perform its obligations under the terms Purchased Securities; the Issuer has complied, or will comply, with all Applicable Securities Laws in connection with the issuance of the Purchased Securities; no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required by the Distribution Trust Agreement.
(d) The execution, Issuer in connection with the execution and delivery and or with the performance by the Delaware Trustee Issuer of this Distribution Trust Subscription Agreement has been duly authorized by all necessary corporate action on except in compliance with the part Applicable Securities Laws and the requirements of the Delaware TrusteeExchange; and this Distribution Trust Agreement has been duly executed Neither the Issuer, nor any partner, director, or officer or any person directly or indirectly controlling, controlled by D or any similar disqualification provision. 8.MiscellaneousThe Subscriber acknowledges and delivered agrees that all costs and expenses incurred by the Delaware TrusteeSubscriber, including any fees and disbursements of any special counsel retained by the Subscriber, relating to the purchase, resale or transfer of the Purchased Securities, shall be borne by the Subscriber. Except as expressly provided for in this subscription and in any agreements, instruments and other documents contemplated or provided for herein, this subscription contains the entire agreement between the parties with respect to the sale of the Purchased Securities and there are no other terms, conditions, representations, warranties, acknowledgments and agreements, whether expressed or implied, whether written or oral, and assuming due authorization, execution and delivery hereof whether made by the other parties hereto or anyone else. This subscription may only be amended by instrument in writing signed by the parties hereto. Notwithstanding the foregoing, constitutes a legalthe Subscriber is not waiving any remedies or protections available by statute or common law in connection with this Agreement or the transactions contemplated hereby. Each party to this subscription covenants that it will, valid from time to time both before and binding obligation after the Closing, at the request and expense of the Delaware Trusteerequesting party, enforceable against it in accordance with its promptly execute and deliver all such other notices, certificates, undertakings, escrow agreements and other instruments and documents, and shall do all such other acts and other things, as may be necessary or desirable for purposes of carry out the provisions of this subscription. The invalidity, illegality or unenforceability of any particular provision of this subscription shall not affect or limit the validity, legality or enforceability of the remaining provisions of this subscription. This subscription, including without limitation the terms, subject to applicable bankruptcyconditions, reorganizationrepresentations, moratoriumwarranties, insolvencyacknowledgments and agreements contained herein, shall survive and other similar laws affecting creditors' rights generally continue in full force and to general principles of equity effect and be binding upon the Subscriber and the discretion Issuer notwithstanding the completion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during the term purchase and sale of the Distribution TrustPurchased Securities, the Delaware Trustee ceases to have its principal place conversion or exercise of business in Delaware, any Purchased Securities and any subsequent disposition thereof by the Delaware Trustee Subscriber. This subscription is not transferable or assignable. This subscription shall provide notice enure to the Administrators at least 60 days in advance benefit of and shall cease to be binding upon the Delaware Trustee unless approved by written consent of the Administrators.
(f) The Property Trustee is a state-chartered bank parties hereto and at the time of appointment has securities rated in one of the three highest categories by a nationally recognized statistical rating organization its respective successors and has capital and surplus of at least $50,000,000.permitted assigns. 71646146.1
Appears in 1 contract
Samples: Convertible Debenture Subscription Agreement (Grown Rogue International Inc.)
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee Vendors The Vendors represent and warrant to the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and Purchasers severally, not jointly, as follows (unless the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit wording of the Depositorrepresentations and warranties refer to a specific date, the ANZ Australian Affiliate following representations and warranties refer to both the U.K. Company that:date of the signing of this Agreement as well as the Closing Date):
(a) The Property Trustee is a banking corporation with trust powersAuthorisation and Validity of the Agreement Each of the Vendors has the legal capacity, duly organizedright, validly existing and in good standing under the laws of Delaware, with trust power and authority to execute and deliverexecute, and to carry out deliver and perform its obligations under this Agreement and the terms of other agreements and documents contemplated by this Distribution Trust Agreement.
(b) . The execution, delivery and performance by the Property Trustee Vendors of this Distribution Trust Agreement has and the consummation by them of the transactions contemplated hereby have been duly authorized authorised by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Vendors. This Agreement has been duly executed and delivered by the Property TrusteeVendors.
(b) Capitalisation The Sale Shares are the whole of the issued registered capital of the Company. There are no rights of first refusal, and assuming due authorization, execution and delivery hereof pre-emptive rights or other similar agreements (whether by the other parties hereto, constitutes a legal, valid Vendors or otherwise) obligating the Company or any Vendor to offer any Sale Shares to any person and binding obligation none of the Property TrusteeSale Shares were issued in violation of any pre-emptive or similar rights. The quotas representing the Subsidiaries' respective registered capital are the whole issued registered capital thereof. There are no rights of first refusal, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and pre-emptive rights or other similar laws affecting creditors' rights generally agreements (whether by the Vendors, the Company or otherwise) obligating the Company or any Vendor to offer any quotas in the Subsidiaries to any person and to general principles none of equity and the discretion said quotas were issued in violation of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity any pre-emptive or at law)similar rights.
(c) Sale Shares The Delaware Trustee Sale Shares are validly issued, fully paid up and owned by and registered under the name of the Vendors in the Company's Book of Shares; and the Vendors made all filings and reporting to the competent court of registration required in connection with the acquisition and holding of the Sale Shares. Upon the Closing the Sale Shares will be transferred to the Purchasers, free from all encumbrances, claims and litigation except for the Agreed Encumbrances and other encumbrances as Commerzbank and the Purchasers may agree. The s quotas respectively held by the Company in the Subsidiaries are validly issued, fully paid up and owned by and registered under the name of the Company; and the Company made all filings and reporting to the competent court of registration required in connection with the acquisition and holding of said shares and quotas. Upon the Closing the Company will own said quotas free from all encumbrances, claims and litigation.
(d) Organisation of the Company The Company is a company limited by shares established under the laws of the Republic of Hungary and is duly organized, validly existing and in good standing as a banking corporation standing. The Subsidiaries are limited liability companies established under the laws of the State Republic of DelawareHungary and are duly organized, with trust power validly existing and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law)good standing.
(e) The Delaware Trustee is an entity which has its principal place of business in Taxation To the State of Delaware. If at any time during the term best of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent knowledge of the AdministratorsVendors the Company and the Subsidiaries have lawfully performed their obligations to file all relevant tax returns and to pay taxes and contributions.
(f) The Property Trustee is a state-chartered bank and at Books To the time of appointment has securities rated in one best of the three highest categories knowledge of the Vendors (i) the Company and the Subsidiaries have kept their books in accordance with the relevant legal rules and the Accounts and the Subsidiaries' respective financial statements present a true and fair view of the Company's and the Subsidiaries' financial position in all material respects as of the date thereof and (ii) the Financial Information are true and fair in all material respects as of the date thereof.
(g) Adherence with Securities Laws Vendor 2 agrees that it is acquiring the Transferable EuroWeb Shares for investment purposes and will not offer, sell or otherwise transfer, pledge or hypothecate any of the Transferable EuroWeb Shares issued to them (other than pursuant to an effective Registration Statement under the Securities Act of 1933, as amended) directly or indirectly unless:
(i) the sale is made pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144 thereunder; or
(ii) the Transferable EuroWeb Shares are sold in a nationally recognized statistical rating organization transaction that does not require registration under the Securities Act of 1933, as amended, or any applicable United States state laws and regulations governing the offer and sale of securities, and the Vendor 2 has capital and surplus furnished to Purchasers an opinion of at least $50,000,000counsel to that effect or such other written opinion as may be reasonably required by Purchasers. Vendor 2 acknowledges that the certificates representing the Transferable EuroWeb Shares shall bear the following legend: NO SALE, OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO SAID SHARES.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Euroweb International Corp)
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee Vendors The Vendors represent and warrant to the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and Purchaser severally, not jointly as follows (unless the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit wording of the Depositorrepresentations and warranties refer to a specific date, the ANZ Australian Affiliate following representations and warranties refer to both the U.K. Company that:date of the signing of this Agreement as well as the Closing Date):
(a) The Property Trustee is a banking corporation with trust powersAuthorisation and Validity of the Agreement Each of the Vendors has the legal capacity, duly organizedright, validly existing and in good standing under the laws of Delaware, with trust power and authority to execute and deliverexecute, and to carry out deliver and perform its obligations under this Agreement and the terms of other agreements and documents contemplated by this Distribution Trust Agreement.
(b) . The execution, delivery and performance by the Property Trustee Vendors of this Distribution Trust Agreement has and the consummation by them of the transactions contemplated hereby have been duly authorized authorised by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Vendors. This Agreement has been duly executed and delivered by the Property TrusteeVendors.
(b) Capitalisation Following the registration of the merger described in Recital A hereof the Company initiated the required procedures regarding the printing out of the Sale Shares, and assuming due authorizationsuch printing out will take place prior to the Closing. The Sale Shares are the whole of the issued registered capital of the Company. Except for the right of first refusal attached to the B Shares as provided in the Articles, execution and delivery hereof there are no rights of first refusal, pre-emptive rights or other similar agreements (whether by the other parties hereto, constitutes a legal, valid Vendors or otherwise) obligating the Company or any Vendor to offer any Sale Shares to any person and binding obligation none of the Property Trustee, enforceable against it Sale Shares were issued in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other violation of any pre-emptive or similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law)rights.
(c) Sale Shares At Closing the Sale Shares shall be validly issued, fully paid up and owned by and registered under the name of the Vendors. Upon the Closing the Sale Shares will be transferred to the Purchaser, free from all encumbrances, claims and litigation except for the Agreed Encumbrances and other encumbrances as the Bank and the Purchaser may agree.
(d) Organisation of the Company The Delaware Trustee Company is a company limited by shares established under the laws of the Republic of Hungary and is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law)standing.
(e) The Delaware Trustee is an entity which has its principal place of business in Taxation To the State of Delaware. If at any time during the term best of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent knowledge of the AdministratorsVendors the Company has lawfully performed its obligations to file all relevant tax returns and to pay taxes and contributions.
(f) The Property Trustee is a state-chartered bank and at Books To the time of appointment has securities rated in one best of the three highest categories by knowledge of the Vendors the Company has kept its books in accordance with the relevant legal rules and its financial statements present a nationally recognized statistical rating organization true and has capital and surplus fair view of at least $50,000,000the Company's financial position in all material respects.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Euroweb International Corp)
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and the -------------------------------------------------------------- Delaware Pass Through -------------------------------------------------- Trustee. ---------------- The Property Pass Through Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit to each of the DepositorOwner ------- Participant, the ANZ Australian Affiliate other Trustees, the Manager, the Lessee Parent and the U.K. Company Lessee that, as of the date hereof:
(a) The Property the Pass Through Trustee is a banking corporation with state chartered trust powers, company duly organized, organized and validly existing and in good standing under the laws of Delawarethe Commonwealth of Massachusetts and has the full corporate power, with authority and legal right under the laws of the Commonwealth of Massachusetts pertaining to its banking, trust power and authority fiduciary powers to execute and deliverexecute, and to carry out deliver and perform its obligations under the terms of this Distribution Pass Through Trust Agreement., the Pass Through Trust Supplement and this Agreement; [Participation Agreement (GARC II 98-A)]
(b) The this Agreement has been, and on the Closing Date, the Pass Through Trust Agreement and the Pass Through Supplement will have been, duly authorized, executed and delivered by the Pass Through Trustee; this Agreement constitutes, and on the Closing Date, the Pass Through Trust Supplement and the Pass Through Trust Agreement will constitute, the legal, valid and binding obligations of the Pass Through Trustee, enforceable against the Pass Through Trustee in accordance with their respective terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(c) the execution, delivery and performance by the Property Pass Through Trustee of the Pass Through Trust Agreement, the Pass Through Trust Supplement and this Distribution Agreement, the purchase by the Pass Through Trustee of the Equipment Notes pursuant to this Agreement, and the issuance of the Pass Through Certificates pursuant to the Pass Through Trust Agreement has been duly authorized by all necessary corporate action and the Pass Through Trust Supplement, do not contravene any law, rule or regulation of any federal or Massachusetts governmental authority or agency regulating the Pass Through Trustee's banking, trust or fiduciary powers or any judgment or order applicable to or binding on the part Pass Through Trustee and do not contravene or result in any breach of, or constitute a default under, the Pass Through Trustee's articles of association or by-laws or any agreement or instrument to which the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered Pass Through Trustee is a party or by which it or any of its properties may be bound or affected;
(d) neither the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation Pass Through Trustee of the Property TrusteePass Through Trust Agreement, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles the Pass Through Trust Supplement or this Agreement nor the consummation by the Pass Through Trustee of equity and the discretion any of the court (regardless transactions contemplated hereby or thereby, requires the consent or approval of, the giving of whether notice to, or the enforcement registration with, or the taking of such remedies is considered in a proceeding in equity any other action with respect to, any federal or at law).Massachusetts governmental authority or agency regulating the Pass Through Trustee's banking, trust or fiduciary powers;
(ce) The Delaware there are no pending or, to its knowledge, threatened actions or proceedings against the Pass Through Trustee is duly organizedbefore any court or administrative agency which individually or in the aggregate, validly existing and in good standing as a banking corporation under if determined adversely to it, would materially adversely affect the laws ability of the State of Delaware, with trust power and authority Pass Through Trustee to execute and deliver, and to carry out and perform its obligations under the terms ofthis Agreement, the Distribution Pass Through Trust Supplement or the Pass Through Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during the term of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators.;
(f) The Property the Pass Through Trustee is not in default under the Pass Through Trust Agreement, as supplemented by the Pass Through Trust Supplement;
(g) the Pass Through Trustee does not directly or indirectly control, and is not directly or indirectly controlled by or under common control with, [the Owner Participant,] the Owner Trustee, the Underwriters, the Lessee Parent or the Lessee; [Participation Agreement (GARC II 98-A)] (h) the Pass Through Trustee is purchasing the Equipment Notes for the purposes contemplated by the Operative Agreements and not with a state-chartered bank view to the transfer or distribution of any Equipment Note to any other Person, except as contemplated by the Operative Agreements; and
(i) except for the issue and at the time of appointment has securities rated in one sale of the three highest categories by a nationally recognized statistical rating organization Pass Through Certificates contemplated hereby, the Pass Through Trustee has not directly or indirectly offered any Equipment Note or Pass Through Certificate or any interest in or to the Trust Estate, the Trust Agreement or any similar interest for sale to, or solicited any offer to acquire any of the same from, anyone other than the Owner Trustee and the Owner Participant, and the Pass Through Trustee has capital not authorized anyone to act on its behalf to offer directly or indirectly any Equipment Note, any Pass Through Certificate or any interest in and surplus to the Trust Estate, the Trust Agreement or any similar interest related to this transaction for sale to, or to solicit any offer to acquire any of at least $50,000,000the same from, any Person other than the Owner Trustee and the Owner Participant.
Appears in 1 contract
Samples: Participation Agreement (General American Railcar Corp Ii)
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee Vendors The Vendors represent and warrant to the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and Purchaser severally, not jointly as follows (unless the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit wording of the Depositorrepresentations and warranties refer to a specific date, the ANZ Australian Affiliate following representations and warranties refer to both the U.K. Company that:date of the signing of this Agreement as well as the Closing Date):
(a) The Property Trustee is a banking corporation with trust powersAuthorisation and Validity of the Agreement Each of the Vendors has the legal capacity, duly organizedright, validly existing and in good standing under the laws of Delaware, with trust power and authority to execute and deliverexecute, and to carry out deliver and perform its obligations under this Agreement and the terms of other agreements and documents contemplated by this Distribution Trust Agreement.
(b) . The execution, delivery and performance by the Property Trustee Vendors of this Distribution Trust Agreement has and the consummation by them of the transactions contemplated hereby have been duly authorized authorised by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Vendors. This Agreement has been duly executed and delivered by the Property TrusteeVendors.
(b) Capitalisation Following the registration of the merger described in Recital A hereof the Company initiated the required procedures regarding the printing out of the Sale Shares, and assuming due authorizationsuch printing out will take place prior to the Closing. The Sale Shares are the whole of the issued registered capital of the Company. Except for the right of first refusal attached to the B Shares as provided in the Articles, execution and delivery hereof there are no rights of first refusal, pre-emptive rights or other similar agreements (whether by the other parties hereto, constitutes a legal, valid Vendors or otherwise) obligating the Company or any Vendor to offer any Sale Shares to any person and binding obligation none of the Property Trustee, enforceable against it Sale Shares were issued in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other violation of any pre-emptive or similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law)rights.
(c) Sale Shares At Closing the Sale Shares shall be validly issued, fully paid up and owned by and registered under the name of the Vendors. Upon the Closing the Sale Shares will be transferred to the Purchaser, free from all encumbrances, claims and litigation except for the Agreed Encumbrances and other encumbrances as the Bank and the Purchaser may agree.
(d) Organisation of the Company The Delaware Trustee Company is a company limited by shares established under the laws of the Republic of Hungary and is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law)standing.
(e) The Delaware Trustee is an entity which has its principal place of business in Taxation To the State of Delaware. If at any time during the term best of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent knowledge of the AdministratorsVendors the Company has lawfully performed its obligations to file all relevant tax returns and to pay taxes and contributions.
(f) The Property Trustee is a state-chartered bank and at Books To the time of appointment has securities rated in one best of the three highest categories knowledge of the Vendors the Company has kept its books in accordance with the relevant legal rules and its financial statements present a true and fair view of the Company’s financial position in all material respects.
(g) XXXXX.XX Rt. Following the execution of the sale of the shareholding interest in XXXXX.XX Rt. neither the Company nor its shareholders will have any remaining material legal, financial or tax liabilities in connection with or arising from the sale of the shareholding interest in XXXXX.XX Rt..
(h) Adherence with Securities Laws. Each of the Vendors agree that they are acquiring the Transferable EuroWeb Shares for investment purposes and will not offer, sell or otherwise transfer, pledge or hypothecate any of the Transferable EuroWeb Shares issued to them (other than pursuant to an effective Registration Statement under the Securities Act of 1933, as amended) directly or indirectly unless:
(i) the sale is made pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000.Rule 144 thereunder; or
Appears in 1 contract
Samples: Sale and Purchase Agreement
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee and the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor, the ANZ Australian Affiliate Depositor and the U.K. Company that:Securityholders that (each such representation and warranty made by the Property Trustee and the Delaware Trustee being made only with respect to itself):
(a) The the Property Trustee is a banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of New York;
(b) the Delaware Trustee is a banking corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full corporate power, with trust power authority and authority legal right to execute and deliverexecute, and to carry out deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the terms of this Distribution Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee it of this Distribution Trust Agreement;
(d) this Trust Agreement has been duly authorized by all necessary corporate action on the part of the Property Trustee; and this Distribution Trust Agreement has been duly authorized, executed and delivered by the Property Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation each of the Property Trustee, Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of the Property Trustee and the Delaware Trustee enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, insolvency, moratorium and other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).principles; and
(ce) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by each of the Property Trustee and the Delaware Trustee of this Distribution Trust Agreement has have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and do not require any approval of stockholders of the Property Trustee or the Delaware Trustee and such execution, delivery and performance will not (i) violate either of the Property Trustee; and this Distribution Trust Agreement has been duly executed and delivered by 's or the Delaware Trustee's charter or by-laws or (ii) violate any law, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation governmental rule or regulation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity United States or at law).
(e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during , as the term case may be, governing the banking, corporate, or trust powers of the Distribution Trust, Property Trustee or the Delaware Trustee ceases (as appropriate in context) or any order, judgment or decree applicable to have its principal place of business in Delaware, the Property Trustee or the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the AdministratorsTrustee.
(f) The Property Trustee is a state-chartered bank and at the time of appointment has securities rated in one of the three highest categories by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE. Property Trustee PURCHASER The Purchaser and the -------------------------------------------------------------- Delaware Trustee. ---------------- The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, Canadian Purchaser hereby represents and warrants for to the benefit Sellers as follows: Organization, Authority and Qualification of the Depositor, the ANZ Australian Affiliate and the U.K. Company that:
(a) Purchaser. The Property Trustee Purchaser is a banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of Delaware, with trust the State of Washington and has all necessary corporate power and authority to execute enter into this Agreement and deliverthe other Transaction Documents to which it is a party, and to carry out and perform its obligations under hereunder and thereunder and to consummate the terms transactions contemplated hereby and thereby. The execution and delivery by the Purchaser of this Distribution Trust Agreement.
(b) The executionAgreement and the other Transaction Documents to which it is a party, delivery and the performance by the Property Trustee Purchaser of this Distribution Trust Agreement has its obligations hereunder and thereunder and the consummation by the Purchaser of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate requisite action on the part of the Property Trustee; and this Distribution Trust Purchaser. This Agreement has been been, and upon their execution, the other Transaction Documents to which the Purchaser is a party, will be, duly executed and delivered by the Property Trustee, and assuming Purchaser. Assuming due authorization, execution and delivery hereof by the Sellers, this Agreement constitutes, and upon their execution, each of the other parties heretoTransaction Documents to which the Purchaser is a party, constitutes will constitute, a legal, valid and binding obligation of the Property TrusteePurchaser, enforceable against it the Purchaser in accordance with its their respective terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, insolvency, and moratorium or other similar laws Laws relating to or affecting creditors' ’ rights generally and subject to the effect of general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding at law or in equity equity). No Conflict. Assuming that all consents, approvals, authorizations and other actions described in Section 5.3 or at law).
(cset forth in Section 8.1(b) The Delaware Trustee is duly organized, validly existing and in good standing as a banking corporation under the laws of the State of DelawareSellers Disclosure Schedule have been obtained, with trust power all filings and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Distribution Trust Agreement.
(dnotifications described in Section 5.3 or set forth in Section 8.1(b) The execution, delivery and performance by the Delaware Trustee of this Distribution Trust Agreement has been duly authorized by all necessary corporate action on the part of the Delaware Trustee; and this Distribution Trust Agreement Sellers Disclosure Schedule have been made, any applicable waiting period has been duly executed and delivered by the Delaware Trustee, and assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity expired or at law).
(e) The Delaware Trustee is an entity which has its principal place of business in the State of Delaware. If at any time during the term of the Distribution Trust, the Delaware Trustee ceases to have its principal place of business in Delaware, the Delaware Trustee shall provide notice to the Administrators at least 60 days in advance and shall cease to be the Delaware Trustee unless approved by written consent of the Administrators.
(f) The Property Trustee is a state-chartered bank and at the time of appointment has securities rated in one of the three highest categories by a nationally recognized statistical rating organization and has capital and surplus of at least $50,000,000.been
Appears in 1 contract
