Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; (v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement. (c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act. (g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default. (i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 36 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary ProspectusInformation;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 4 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(fi) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(ii) The Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Issuer has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
(k) Neither the Issuer nor any of its affiliates has engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.
Appears in 4 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms By executing this Subscription Agreement, the Issuer represents, warrants and covenants to each Underwriter the Purchaser that, as of at the date hereof of acceptance by the Issuer of this Subscription Agreement and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of given at a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such particular date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, acknowledges that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to Purchaser is relying thereon that:
(a) the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectusits subsidiary are each corporations incorporated, the Issuer (including its agents validly subsisting and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delawarejurisdictions in which they are incorporated and have all the requisite corporate power, with power authority and authority capacity to carry on their business as now conducted and to own its or lease their properties and conduct assets;
(b) the Issuer has all necessary corporate power, authority and capacity to enter into and carry out its business obligations under this Subscription Agreement and all other agreements and instruments to be executed by the Purchaser as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), this Subscription Agreement and has obtained taken all necessary material licenses and approvals (except with corporate action in respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.thereof;
(c) The the execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Subscription Agreement and the Indenture such other agreements and the issuance of the Notes instruments and the consummation of the transactions contemplated hereby by this Subscription Agreement and thereby such other agreements and instruments have been duly and validly authorized by the Issuer;
(d) the authorized share capital of the Issuer consists of an unlimited number of common shares, of which 9,925,256 were issued and outstanding as at May 17, 2016, and all issued common shares have been validly issued and are outstanding as fully paid and non-assessable;
(e) as of May 17, 2016, there were no outstanding securities, notes or instruments convertible into or exercisable for common shares other equity interests of the Issuer, other than 1,393,211 incentive stock options of the Issuer, 231,016 restricted share units of the Issuer, 86,918 deferred share units of the Issuer and 86,848,002 common share purchase warrants exercisable to purchase up to 5,049,445 common shares of the Issuer, provided however, that 86,103,744 of such warrants, exercisable to purchase 4,305,187 common shares, cannot be exercised pursuant to their terms so long as the exercise price is above the current market price of the common shares;
(f) all securities of the Issuer have been issued in all material respects in accordance with the provisions of all applicable securities laws and applicable corporate laws;
(g) the Issuer has complied with and will fully comply with the requirements of applicable securities laws and applicable corporate legislation in respect of the Offering;
(h) the Purchased Securities have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution for issuance and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with upon issuance pursuant to the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase fully paid as non-assessable common shares in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as capital of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute Issuer;
(i) this Subscription Agreement constitutes a legal, valid and binding obligation of the Issuer, Issuer enforceable against the Issuer in accordance with its termsterms subject, except however, to the extent that the enforceability thereof may be subject customary limitations with respect to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium insolvency or other similar laws now or hereafter in effect relating to affecting creditors’ rights in general as such laws would apply in generally and to the event availability of equitable remedies;
(j) the execution and delivery of this Subscription Agreement and the compliance by the Issuer with the terms hereof, including the issue, sale and delivery of the insolvencyPurchased Securities, liquidation will not result in any breach, or reorganization be in conflict with, or other similar occurrence with respect to constitute a default under, or create a state of facts which after notice or lapse of time or both would constitute a default under, any term or provision of the Issuer’s constating documents or by-laws, resolutions of the directors of the Issuer or in the event of any moratorium indenture, contract, agreement (whether written or similar occurrence affecting oral), instrument or other document to which the Issuer and to general principles of equity. All approvals, authorizations, consents, orders is a party or other actions of any person, corporation or other organizationsubject, or of any courtjudgment, governmental agency decree, order, statute, rule or body or official (except with respect regulation applicable to the securities laws Issuer;
(k) except for approval for listing of the Purchased Securities by the TSX, no approval, authorization, consent or order of, and no filing, registration or recording with, any foreign jurisdiction governmental authority or any third party is required of the state securities or Blue Sky laws of various jurisdictions), required Issuer in connection with the valid execution and proper authorization, issuance and sale delivery or with the performance by the Issuer of the Notes pursuant to this Agreement and the applicable Terms Subscription Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.;
(fl) The the Issuer is not nowwill within the required time, file with the TSX or any other applicable securities agency, any documents, reports and following information, in the issuance of the Notes, will not berequired form, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person filed by Securities Laws in connection with the sale Offering, together with any applicable filing fees and other materials;
(m) at the Closing Time, approval for listing of the Notes, and neither Purchased Securities by the Company nor TSX will have been obtained subject to the fulfilment of any post-Closing filings referred to in the conditional acceptance letter from the TSX;
(n) the Issuer are under any obligation to pay any broker’s fee or commission is a “reporting issuer” in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Xxxxxx Xxxxxx Island, Newfoundland and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available toLabrador, Northwest Territories, Yukon and in the reasonable belief of, the Issuer, Nunavut and the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge in default of any of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings material requirements of the result of which might have a material adverse effect on the Noteholders.applicable securities laws;
(jo) As of the Closing Date, the representations and warranties common shares of the Issuer are listed and posted for trading on the TSX;
(p) the Issuer is not a party to any unanimous shareholder, voting trust or similar agreement in each case relating to any of the Indenture issued and outstanding securities or equity interests of the Issuer;
(q) the Issuer has not entered into a shareholders rights plan agreement or put in place a shareholders rights plan;
(r) the Issuer is the owner of all of its property and assets used by it in connection with its business, unless leased or licensed, in each case with good and marketable title thereto, free and clear of any encumbrances and of any rights or privileges capable of becoming encumbrances, except as disclosed publicly by the Issuer any and all agreements pursuant to which the Issuer or its subsidiary holds or will be true and correct hold any such interest in property, business or assets are in good standing in all material respectsrespects according to their terms, and the properties are in good standing in all material respects under the applicable statutes and regulations of the jurisdictions in which they are situated;
(s) except as disclosed in the Issuer’s publicly filed documents, the Issuer and its subsidiary are not a party to any actions, suits or proceedings which could materially adversely affect its or its subsidiary’s business or financial condition, and, except as disclosed in such publicly filed documents, to the best of the Issuer’s knowledge no such actions, suits or proceedings have been threatened as at the date hereof.
Appears in 4 contracts
Samples: Subscription Agreement (Orbimed Advisors LLC), Subscription Agreement (Orbimed Advisors LLC), Subscription Agreement (Orbimed Advisors LLC)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms AgreementThe Issuer hereby represents and warrants to, and covenants with, the Issuer representsSubscriber as follows and acknowledges that the Subscriber is relying on such acknowledgements, warrants representations, warranties and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;transactions contemplated herein:
(iva) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon is a valid and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus subsisting corporation incorporated and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of British Columbia;
(b) the State of Delaware, with power Issuer is duly registered and authority licensed to own its properties and conduct its carry on business as described in the Preliminary Prospectus and to execute, deliver and perform jurisdictions in which it carries on business or owns property where required under the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.that jurisdiction;
(c) The execution, delivery and performance this Subscription Agreement has been or will be by the Issuer of this AgreementClosing, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust corporate action on the part of the Issuer. Neither , and the execution and delivery Issuer has or will have by the Issuer Closing full corporate power and authority to undertake the Offering;
(d) the common shares of such instruments, nor the performance by the Issuer are, and will continue to be as of the transactions herein or therein contemplatedClosing Date, nor listed and posted for trading on the compliance by Exchange;
(e) the Issuer will apply to, and use commercially reasonable efforts to obtain the listing of the Unit Shares and Warrant Shares issuable under the Offering on, the Exchange;
(f) the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the provisions hereof or thereofoffer, will (i) conflict with or result in a breach of any sale and issuance of the material terms and provisions of, Securities;
(g) no order ceasing or constitute a material default under, suspending trading in the Trust Agreement, or (ii) conflict with any securities of the provisions Issuer or prohibiting sale of any law, governmental rule, regulation, judgment, decree or order binding on its securities has been issued to the Issuer or its propertiesdirectors, officers or promoters;
(iiih) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result “reporting issuer” in the creation or imposition provinces of any lienBritish Columbia, charge or encumbrance upon any Alberta, Saskatchewan, Ontario and New Brunswick and is not included on the list of defaulting reporting issuers issued by the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.securities regulators in those jurisdictions;
(di) The Issuer has duly executed and delivered this Agreement and upon their issuance on the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with Closing Date, the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and Unit Shares will be validly issued and entitled to the benefits outstanding as fully paid and security afforded by the Indenture. Each increase non-assessable common shares in the Collateral Certificate capital of the Issuer and the Warrants will have been authorized be validly issued and effected the certificates representing such Unit Shares and Warrants will be validly delivered;
(j) upon exercise of the Warrants in accordance with the Pooling terms thereof, the Warrant Shares will be validly issued and Servicing Agreement outstanding as fully paid and non-assessable common shares in the capital of the Issuer;
(k) it will reserve or set aside sufficient shares in its treasury to issue the Unit Shares and Warrant Shares;
(l) there is no “material fact” or “material change” (as those terms are defined in applicable settlement date Securities Laws) in the affairs of each Note. When executed the Issuer that has not been generally disclosed to the public; and
(m) this Subscription Agreement constitutes a binding and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding enforceable obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 3 contracts
Samples: Subscription Agreement (Niocorp Developments LTD), Subscription Agreement (Niocorp Developments LTD), Subscription Agreement (Niocorp Developments LTD)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the 5.1 The Issuer represents, warrants and covenants to each Underwriter that, as of the date hereof given above and as of at the Closing Date (unless otherwise specified) as followsClosing:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act is a valid and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust subsisting corporation in good standing under the laws of the State Province of DelawareBritish Columbia;
(b) the Issuer is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where required under the laws of that jurisdiction;
(c) the authorized capital of the Issuer is 100,000,000 shares without par value and the issued capital of the Issuer is 5,448,401 shares that are fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its treasury to issue the Shares and the Warrant Shares, and upon their issuance the Shares and the Warrant Shares will be duly and validly issued as fully paid and non-assessable;
(e) the Issuer is the beneficial owner of the interests in the properties, business or assets, all agreements by which the Issuer holds an interest in a property, business or assets are in good standing according to their terms and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the financial statements of the Issuer filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer as of the date thereof, and no adverse material changes in the financial position of the Issuer have taken place since the date thereof;
(g) the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Acts and the COMPANY ACT (British Columbia) in relation to the issue and trading of its securities and in all matters relating to the Private Placement;
(h) there is not presently, and will not be until the closing of the Private Placement, any material change, as defined in the Acts, relating to the Issuer or change in any material fact, as defined in the Acts, relating to the Issuer or any of the Securities which has not been or will not be fully disclosed in accordance with the requirements of the Acts and the policies of the Exchange;
(i) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Issuer's incorporating documents or any agreement or instrument to which the Issuer is a party;
(j) the Issuer is not a party to any actions, suits or proceedings which could materially affect its business or financial condition, and to the best of the Issuer's knowledge no such actions, suits or proceedings are contemplated or have been threatened;
(k) there are no judgments against the Issuer which are unsatisfied, nor is the Issuer subject to any consent decrees or injunctions;
(l) this Agreement has been or will be by the Closing, duly authorized by all necessary corporate action on the part of the Issuer, and the Issuer has or will have by the Closing full corporate power and authority to own its properties undertake the Private Placement;
(m) the Issuer is or will be prior to the Closing a "Qualifying Issuer" as defined in Multilateral Instrument 45-102 and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform "hold period" under Multilateral Instrument 45-102 will not exceed four months from the Indenture, and to authorize the date of issuance of the NotesPurchased Securities in respect of the Shares, the Warrants and to consummate the transactions contemplated by Warrant Shares;
(n) the Indenture and Issuer is duly qualified to do business and is not in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws default of any foreign jurisdiction of the requirements of the Acts or any of the state administrative policies or notices of the Exchange;
(o) no order ceasing or suspending trading in securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its subsidiaries directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(p) except as disclosed in the Company's financial statements, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming such a right, agreement or option, for the issue or allotment of any unissued shares in the capital of the Issuer or its subsidiaries, if any), taken as a whole or any other security convertible into or exchangeable for any such shares, or to require the Issuer or its subsidiaries, if any, to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital;
(iiq) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and
(r) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Issuer or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer's management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture properties, business or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part assets of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) 5.2 The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of contained in this section will survive the Issuer in the Indenture will be true and correct in all material respectsClosing.
Appears in 3 contracts
Samples: Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-price- dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary ProspectusInformation;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 0000 Xxx. The Issuer does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(fi) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(ii) The Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Issuer has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the 5.1 The Issuer represents, warrants and covenants to each Underwriter that, as of the date hereof given above and as of at the Closing Date (unless otherwise specified) as followsClosing:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act is a valid and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust subsisting corporation in good standing under the laws of the State Province of DelawareBritish Columbia;
(b) the Issuer is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where required under the laws of that jurisdiction;
(c) the authorized capital of the Issuer is 100,000,000 common shares without par value and the issued capital of the Issuer is 24,522,915 common shares that are fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its treasury to issue the Shares and the Warrant Shares, and upon their issuance the Shares and the Warrant Shares will be duly and validly issued as fully paid and non-assessable;
(e) the Issuer is the beneficial owner of the interests in the properties, business or assets, all agreements by which the Issuer holds an interest in a property, business or assets are in good standing according to their terms and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the financial statements of the Issuer filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer as of the date thereof, and no adverse material changes in the financial position of the Issuer have taken place since the date thereof;
(g) the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Acts and the British Columbia Corporations Act in relation to the issue and trading of its securities and in all matters relating to the Private Placement;
(h) there is not presently, and will not be until the closing of the Private Placement, any material change, as defined in the Acts, relating to the Issuer or change in any material fact, as defined in the Acts, relating to the Issuer or any of the Securities which has not been or will not be fully disclosed in accordance with the requirements of the Acts and the policies of the Exchange;
(i) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Issuer's incorporating documents or any agreement or instrument to which the Issuer is a party;
(j) the Issuer is not a party to any actions, suits or proceedings which could materially affect its business or financial condition, and to the best of the Issuer's knowledge no such actions, suits or proceedings are contemplated or have been threatened;
(k) there are no judgments against the Issuer which are unsatisfied, nor is the Issuer subject to any consent decrees or injunctions;
(l) this Agreement has been or will be by the Closing, duly authorized by all necessary corporate action on the part of the Issuer, and the Issuer has or will have by the Closing full corporate power and authority to own its properties undertake the Private Placement;
(m) the Issuer is or will be prior to the Closing a "Qualifying Issuer" as defined in Multilateral Instrument 45-102 and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform "hold period" under Multilateral Instrument 45-102 will not exceed four months from the Indenture, and to authorize the date of issuance of the NotesPurchased Securities in respect of the Shares, the Warrants and to consummate the transactions contemplated by Warrant Shares;
(n) the Indenture and Issuer is duly qualified to do business and is not in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws default of any foreign jurisdiction of the requirements of the Acts or any of the state administrative policies or notices of the Exchange;
(o) no order ceasing or suspending trading in securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its subsidiaries directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(p) except as disclosed in the Company's financial statements, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming such a right, agreement or option, for the issue or allotment of any unissued shares in the capital of the Issuer or its subsidiaries, if any), taken as a whole or any other security convertible into or exchangeable for any such shares, or to require the Issuer or its subsidiaries, if any, to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital;
(iiq) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and
(r) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Issuer or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer's management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture properties, business or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part assets of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) 5.2 The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of contained in this section will survive the Issuer in the Indenture will be true and correct in all material respectsClosing.
Appears in 2 contracts
Samples: Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp)
Representations, Warranties and Covenants of the Issuer. Upon The Issuer hereby represents and warrants to and covenants with the execution Underwriter that:
(a) The Issuer is a municipal authority incorporated under provisions of the applicable Terms Municipality Authorities Act as amended and supplemented, 53 Pa.C.S. Chapter 56 (the “Act”), of the Commonwealth of Pennsylvania (the “Commonwealth” or the “State”) and has at the date hereof, and will have at the date of Closing, full legal right, power and authority under the Act and at the date of the Closing will have full legal right, power and authority under the Act and the Indenture (i) to enter into, execute and deliver this Agreement and the Continuing Disclosure Undertaking (the “Undertaking”) as defined in Section 6(i)(3) hereof, and all documents required hereunder and thereunder to be executed and delivered by the Issuer (this Agreement, the Issuer representsIndenture, warrants the Lease, the Undertaking and covenants the other documents referred to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
in this clause (i) The Registration Statement are hereinafter referred to as the “Authority Bond Documents”), (ii) to sell, issue and deliver the Bonds to the Underwriter as provided herein, and (iii) to carry out and consummate the transactions contemplated by the Authority Bond Documents and the Official Statement, and the Authority has been filed complied, and will at the Closing be in compliance in all respects, with the Commission terms of the Act and the Authority Bond Documents as they pertain to such Registration transactions;
(b) By all necessary official action of the Issuer prior to or concurrently with the acceptance hereof, or such later date satisfactory to the Underwriter, the Issuer has duly authorized all necessary action to be taken by it for (i) the adoption of the Bond Resolution and the issuance and sale of the Bonds, (ii) the approval, execution and delivery of, and the performance by the Issuer of the obligations on its part, contained in the Bonds and the Issuer Documents and (iii) the consummation by it of all other transactions contemplated by the Official Statement, the Issuer Documents and any and all such other agreements and documents as amendedmay be required to be executed, has become effectivedelivered and/or received by the Issuer in order to carry out, give effect to, and consummate the transactions contemplated herein, in the Bond Resolution and in the Official Statement;
(c) The Issuer Documents constitute or will constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights; the Bonds, when issued, delivered and paid for in accordance with the Bond Resolution and this Agreement, will constitute legal, valid and binding obligations of the Issuer entitled to the benefits of the Bond Resolution and enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of equity relating to or affecting the enforcement of creditors’ rights; and upon the conditions issuance, authentication and delivery of the Bonds as aforesaid, the Bond Resolution will provide, for the benefit of the holders, from time to time, of the use of a registration statement on Form S-3 under Bonds, the Act, legally valid and binding pledge it purports to create as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration StatementBond Resolution;
(iid) As The Issuer is not in breach of or default in any material respect under any applicable constitutional provision, law or administrative regulation of the Closing DateCommonwealth or the United States, the Registration Statementany applicable judgment or decree, the Preliminary Prospectus and the Prospectusor any loan agreement, except with respect to any modification indenture, bond, note, resolution, agreement or other instrument to which the Representatives have agreed in writingIssuer is a party relating to the transaction contemplated by this Agreement or to which the Issuer is or any of its property or assets are otherwise subject, shall be in all substantive respects and no event has occurred and is continuing which constitutes or with the passage of time or the giving of notice, or both, would constitute a default or event of default by the Issuer under any of the foregoing; and the execution and delivery of the Bonds and the Issuer Documents and the adoption of the Bond Resolution and compliance with the provisions on the Issuer’s part contained therein, will not conflict with or constitute a breach of or default under any constitutional provision, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Issuer is a party or to which the Issuer is or any of its property or assets is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the form furnished creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Issuer to be pledged to secure the Bonds or under the terms of any such law, regulation or instrument, except as provided in the Bonds and the Bond Resolution;
(e) All authorizations and approvals of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization of, which would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the Issuer of its obligations under the Issuer Documents and the Bonds have been or will be duly obtained;
(f) The Bonds shall conform to the Representatives descriptions thereof to be set forth in the Official Statement under the caption “Description of the Bonds”; the description of the Bond Resolution to be contained in the Official Statement under the caption “Introduction” shall conform to the Bond Resolution; the proceeds of the sale of the Bonds will be applied generally as described in the addendum to this Agreement and in the Official Statement under the caption “PURPOSE OF THE ISSUE”; and, if applicable, the Undertaking shall conform to the description thereof to be contained in the Official Statement under the caption “Continuing Disclosure Undertaking;”
(g) There is no legislation, action, suit, proceeding, inquiry or investigation, at law or in equity, before such date or by any court, government agency, public board or body, pending or, to the extent not completed on such datebest knowledge of the Issuer after due inquiry, shall contain only such specific additional information and other changes threatened against the Issuer, (beyond that contained in 1) affecting the latest Preliminary Prospectus that has previously been furnished existence of the Issuer or the titles of its officers to their respective offices, (2) affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Bonds, or the collection of taxes pledged to the Representativespayment of principal of and interest on the Bonds, pursuant to the Bond Resolution, (3) as in any way contesting or affecting the validity or enforceability of the Bonds or the Issuer has advised Documents, (4) contesting the Representativesexclusion from gross income of interest on the Bonds for federal income tax purposes under existing laws or the exclusion from gross income of interest on the Bonds from Pennsylvania personal income tax and Pennsylvania personal property taxes under the laws of the Commonwealth, before (5) contesting in any way the timing or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto, or (6) contesting the powers of the Issuer or any authority for the issuance of the Bonds, the adoption of the Bond Resolution or the execution and delivery of the Issuer Documents, nor, to the best knowledge of the Issuer, if any such timeaction does exist or is threatened, will be included is there any basis therefor, wherein an unfavorable decision, ruling or made thereinfinding would materially adversely affect the validity or enforceability of the Bonds or the Issuer Documents;
(iiih) On As of its date, the effective Preliminary Official Statement shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) From its date (unless the Official Statement is amended or supplemented pursuant to paragraph (c) of Section 4 of this Agreement), up to and including the date of the Registration StatementClosing, the Registration Official Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did shall not include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading misleading;
(it being understood that no representation j) The Issuer will apply, or warranty is made with respect cause to be applied, the proceeds from the sale of the Bonds as provided in and subject to all of the terms and provisions of the Bond Resolution and not take or omit to take any action which action or omission will adversely affect the exclusion from gross income for federal income tax purposes or Commonwealth income tax purposes of pricing the interest on the Bonds;
(k) The financial statements of, and price-dependent informationother financial information regarding the Issuer, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary ProspectusOfficial Statement and the Official Statement shall fairly present the financial position and results of the Issuer as of the dates and for the periods therein set forth. Prior to the Closing, there will be no adverse change of a material nature in such financial position, results of operations or condition, financial or otherwise, of the Issuer. The Issuer is not a party to any litigation or other proceeding pending or, to its knowledge, threatened which, if decided adversely to the Issuer, would have a materially adverse effect on the financial condition of the Issuer;
(vl) Other than Prior to the Preliminary Prospectus and the Prospectus, Closing the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepareoffer or issue any notes, make, use, authorize, approve bonds or refer other obligations for borrowed money payable from or secured by any of the revenues or assets which will secure the Bonds without prior notice to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.Underwriter; and
(bm) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws Any certificate signed by any official of the State of Delaware, Issuer duly authorized to do so in connection with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture this Agreement shall be deemed a representation and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance warranty by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant Underwriter as to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.statements made therein;
Appears in 2 contracts
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) (i) The Registration Statement Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and such the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply Issuer makes no representation or warranty with respect to information contained any statements or omissions made in or omitted from either of the documents based reliance upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use and in connection conformity with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below);
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information (as defined below); and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture Indenture, the Asset Representations Review Agreement or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(fi) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(ii) The Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Issuer has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
(k) Neither the Issuer nor any of its affiliates has engaged any third-party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations, Warranties and Covenants of the Issuer. Upon 4.1 The Issuer represents and warrants to and covenants with the execution Purchaser that:
(a) the Issuer is a valid and subsisting corporation duly incorporated under the laws of the applicable Terms AgreementProvince of British Columbia and in good standing with respect to the filing of annual reports with the British Columbia Registrar of Companies;
(b) the Issuer is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction and is not otherwise precluded from carrying on business or owning property in such jurisdictions by any other commitment, agreement or document;
(c) the Issuer has full corporate power and authority to carry on its business as now carried on by it and this Subscription Agreement has been, or will be by Closing, duly authorized by all necessary corporate action on the part of the Issuer;
(d) the authorized capital of the Issuer consists of an unlimited number of Common Shares without par value, of which 42,920,059 Common Shares were issued and outstanding as fully paid and non-assessable as at February 22, 2011;
(e) the Issuer will reserve or set aside sufficient shares in its treasury to issue the Common Shares and all such shares will be duly and validly issued as fully paid and non-assessable;
(f) the Issuer is a “reporting issuer” or the equivalent in the Reporting Jurisdictions and is not included in the list of defaulting reporting issuers maintained by the Commissions;
(g) the common shares of the Issuer are listed for trading on the Exchange and no order ceasing, halting or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(h) as at the respective dates thereof, the information comprised in the Public Record was true and correct and did not contain any misrepresentations (as such term is defined in the Applicable Legislation);
(i) the financial statements filed with the Commissions (collectively the “Financial Statements”) have been prepared in accordance with Canadian generally accepted accounting principles, present fairly, in all material respects, the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer represents, warrants and covenants to each Underwriter as of the date hereof thereof, and as the business of the Closing Date Issuer has been carried on in the usual and ordinary course consistent with past practice since the date of the most recent Financial Statements;
(unless j) save and except as disclosed in the Financial Statements, the Issuer does not have any loans or other indebtedness outstanding which has been made to any of its shareholders, officers, directors or employees, past or present, or any person not dealing at “arm’s length” (as such term is used in the Income Tax Act (Canada));
(k) the Issuer holds all material licenses, registrations, qualifications, permits and consents necessary for carrying on its businesses as presently carried on and all such licenses, registrations, qualifications, permits and consents are valid and subsisting and in good standing, and the Issuer has entered into all agreements necessary to carry on its business and all such agreements are valid and in good standing in all material respects;
(l) to the extent disclosed in the Public Record, the Issuer is the legal and/or beneficial owner of, and has good and marketable title to, all of the material property rights and interests described in the Public Record as being owned by it, either through a direct or indirect ownership, royalty or other interest, and no other property rights are necessary for the conduct of the business of the Issuer as currently conducted and the Issuer is not aware of any claim that might or could materially adversely affect the right thereof to use, transfer or otherwise specifiedexploit such property rights;
(m) as follows:
the Issuer (i) The Registration Statement has been filed is in material compliance with the Commission applicable federal, state and such Registration Statement, as amended, has become effective; local laws and the conditions regulations relating to the use protection of a registration statement on Form S-3 under human health and safety, the Actenvironment or hazardous or toxic substances or wastes, as set forth in the General Instructions to Form S-3pollutants or contaminants (collectively, and the conditions of Rule 415 under the Act“Environmental Laws”), have been satisfied with respect to the Registration Statement;
(ii) As has received all necessary permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business, (iii) is in material compliance with all terms and conditions of any such permit, license or approval, and (iv) confirms that there have been no past, and there are no current claims, complaints, notices or requests for information received by the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except Issuer with respect to any modification to which the Representatives have agreed in writingalleged material violation of any Environmental Laws that, shall be in all substantive respects individually or in the form furnished aggregate, has or may reasonably be expected to have, a material adverse effect on the Representatives before such date orbusiness, to operations or financial condition of the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made thereinIssuer;
(iiin) On all assessments or other work required to be performed in relation to the effective date material mining claims and the mining rights of the Registration StatementIssuer in order to maintain its interest therein, the Registration Statement conformed if any, have been performed to date and it has complied in all material respects with the all applicable requirements governmental laws, regulations and policies in this connection except in respect of the Act mining claims and the Rules mining rights that it intends to abandon or relinquish and Regulations, and did except for any non-compliance which would not include any untrue statement of a material fact either individually or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would aggregate have a material adverse effect on the business, operations or financial condition of the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.;
(co) The execution, delivery and performance all exploration activities conducted by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby on its mineral properties have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform conducted in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with good mining and engineering practices except where the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except failure to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws so conduct operations would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.business, operations or financial condition of the Issuer;
(jp) As the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Applicable Legislation with respect to the sale of the Closing Date, the representations and warranties of Common Shares;
(q) there are no judgments against the Issuer which are unsatisfied, nor are there any consent decrees or injunctions to which the Issuer is subject;
(r) the Issuer shall not take any action which would be reasonably expected to result in the Indenture will be true delisting or suspension of its Common Shares on or from the Exchange or on or from any stock exchange, market or trading or quotation facility on which its common shares are listed or quoted and correct the Issuer shall comply, in all material respects, with the rules and regulations thereof; and
(s) the warranties and representations in this Section are true and correct and will remain so as of Closing.
Appears in 2 contracts
Samples: Subscription Agreement (Gold Standard Ventures Corp.), Subscription Agreement (Gold Standard Ventures Corp.)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the 5.1 The Issuer represents, warrants and covenants to each Underwriter that, as of the date hereof given above and as of at the Closing Date (unless otherwise specified) as followsClosing:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act is a valid and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust subsisting corporation in good standing under the laws of the State Province of DelawareBritish Columbia;
(b) the Issuer is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where required under the laws of that jurisdiction;
(c) the authorized and issued capital of the Issuer are as disclosed in the Offering Memorandum and the outstanding shares of the Issuer are fully paid and non-assessable;
(d) the Issuer will reserve or set aside sufficient shares in its treasury to issue the Shares and the Warrant Shares, and upon their issuance the Shares and the Warrant Shares will be duly and validly issued as fully paid and non-assessable;
(e) except as qualified by the disclosure in the Offering Memorandum, the Issuer is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, all agreements by which the Issuer holds an interest in a property, business or assets are in good standing according to their terms and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(f) the financial statements of the Issuer incorporated by reference in the Offering Memorandum and filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer as of the date thereof, and no adverse material changes in the financial position of the Issuer have taken place since the date thereof;
(g) the Offering Memorandum does not contain a "misrepresentation" (as defined in the Acts);
(h) the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Acts and the COMPANY ACT (British Columbia) in relation to the issue and trading of its securities and in all matters relating to the Private Placement;
(i) there is not presently, and will not be until the closing of the Private Placement, any material change, as defined in the Acts, relating to the Issuer or change in any material fact, as defined in the Acts, relating to the Issuer or any of the Securities which has not been or will not be fully disclosed in accordance with the requirements of the Acts and the policies of the Exchange;
(j) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Issuer's incorporating documents or any agreement or instrument to which the Issuer is a party;
(k) the Issuer is not a party to any actions, suits or proceedings which could materially affect its business or financial condition, and to the best of the Issuer's knowledge no such actions, suits or proceedings are contemplated or have been threatened;
(l) there are no judgments against the Issuer which are unsatisfied, nor is the Issuer subject to any consent decrees or injunctions;
(m) this Agreement has been or will be by the Closing, duly authorized by all necessary corporate action on the part of the Issuer, and the Issuer has or will have by the Closing full corporate power and authority to own its properties undertake the Private Placement;
(n) the Issuer is or will be prior to the Closing a "Qualifying Issuer" as defined in Multilateral Instrument 45-102 and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform "hold period" under Multilateral Instrument 45-102 will not exceed four months from the Indenture, and to authorize the date of issuance of the NotesPurchased Securities in respect of the Shares, the Warrants and to consummate the transactions contemplated by Warrant Shares;
(o) the Indenture and Issuer is duly qualified to do business and is not in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws default of any foreign jurisdiction of the requirements of the Acts or any of the state administrative policies or notices of the Exchange;
(p) no order ceasing or suspending trading in securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its subsidiaries directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened;
(q) except as disclosed in the Offering Memorandum, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming such a right, agreement or option, for the issue or allotment of any unissued shares in the capital of the Issuer or its subsidiaries, if any), taken as a whole or any other security convertible into or exchangeable for any such shares, or to require the Issuer or its subsidiaries, if any, to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its capital;
(iir) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and
(s) the Issuer has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Issuer or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of the Issuer which are known by the Issuer's management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture properties, business or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part assets of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) 5.2 The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of contained in this section will survive the Issuer in the Indenture will be true and correct in all material respectsClosing.
Appears in 2 contracts
Samples: Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms AgreementThe Issuer hereby represents and warrants to, and covenants with, the Issuer representsSubscriber as follows and acknowledges that the Subscriber is relying on such acknowledgements, warrants representations, warranties and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;transactions contemplated herein:
(iva) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon is a valid and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus subsisting corporation incorporated and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of British Columbia;
(b) the State of Delaware, with power Issuer is duly registered and authority licensed to own its properties and conduct its carry on business as described in the Preliminary Prospectus and to execute, deliver and perform jurisdictions in which it carries on business or owns property where required under the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.that jurisdiction;
(c) The execution, delivery and performance this Subscription Agreement has been or will be by the Issuer of this AgreementClosing, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust corporate action on the part of the Issuer. Neither , and the execution and delivery Issuer has or will have by the Issuer Closing full corporate power and authority to undertake the Offering;
(d) the common shares of such instruments, nor the performance by the Issuer are, and will continue to be as of the transactions herein or therein contemplatedClosing Date, nor listed and posted for trading on the compliance by Exchange;
(e) the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the provisions hereof or thereofoffer, will (i) conflict with or result in a breach of any sale and issuance of the material terms and provisions of, Securities;
(f) no order ceasing or constitute a material default under, suspending trading in the Trust Agreement, or (ii) conflict with any securities of the provisions Issuer or prohibiting sale of any law, governmental rule, regulation, judgment, decree or order binding on its securities has been issued to the Issuer or its propertiesdirectors, officers or promoters;
(iiig) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result “reporting issuer” in the creation or imposition provinces of any lienBritish Columbia, charge or encumbrance upon any Alberta, Saskatchewan, Ontario and New Brunswick and is not included on the list of defaulting reporting issuers issued by the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.securities regulators in those jurisdictions;
(dh) The Issuer has duly executed and delivered this Agreement and upon their issuance on the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with Closing Date, the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and Unit Shares will be validly issued and entitled to the benefits outstanding as fully paid and security afforded by the Indenture. Each increase non-assessable common shares in the Collateral Certificate will have been authorized and effected capital of the Issuer;
(i) upon exercise of the Warrants in accordance with the Pooling terms thereof, the Warrant Shares will be validly issued and Servicing Agreement outstanding as fully paid and non-assessable common shares in the capital of the Issuer;
(j) there is no “material fact” or “material change” (as those terms are defined in applicable settlement date Securities Laws) in the affairs of each Note. When executed the Issuer that has not been generally disclosed to the public; and
(k) this Subscription Agreement constitutes a binding and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding enforceable obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement (Niocorp Developments LTD)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(iii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iiiA) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iviii) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(viv) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)
Representations, Warranties and Covenants of the Issuer. Upon To induce the execution of the applicable Terms Forbearing Noteholders to execute and deliver this Agreement, the Issuer and the Guarantors, jointly and severally, represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as followsthat:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(ca) The execution, delivery and performance by the Issuer and each of the Guarantors of this Agreement and all documents and instruments delivered in connection herewith have been duly authorized by the Issuer and each of the Guarantors, this Agreement has been duly executed and delivered by the Issuer and each of the Guarantors, and this Agreement and all documents and instruments delivered in connection herewith are legal, valid and binding obligations of the Issuer and each of the Guarantors enforceable against the Issuer and each of the Guarantors in accordance with their terms, except as the enforcement thereof may be subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law);
(b) Neither the execution, delivery and performance of this Agreement, the applicable Terms Agreement all documents and instruments delivered in connection herewith, and the Supplemental Indenture and the issuance of the Notes and (as defined below), nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of the Issuer’s or any of the Guarantors’ organizational documents or (ii) any applicable laws;
(i) On or prior to November 1, 2020, the execution, delivery and thereby performance by the Issuer of a supplemental indenture to the Indenture (the “Supplemental Indenture”) shall have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by , the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly shall have executed and delivered this Agreement the Supplemental Indenture and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Supplemental Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, Issuer enforceable against the Issuer in accordance with its terms, except to as the extent that the enforceability enforcement thereof may be subject to (A) the effect of any applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to law affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforcement is sought in general as such laws would apply a proceeding in equity or at law); and
(ii) the event Supplemental Indenture shall provide that the following language will be added to Section 6.01(c)(ii) of the insolvencyIndenture immediately after “even though such delivery is not within the prescribed period specified in this Indenture”: “provided that, liquidation or reorganization or other similar occurrence notwithstanding the foregoing, any Event of Default for failure to comply with the time periods prescribed in Section 4.15 with respect to the Issuer or in Issuer’s Quarterly Report on Form 10-Q for the event of any moratorium or similar occurrence affecting fiscal quarter ended June 30, 2020 (the Issuer and “Q2 2020 Financial Report”) shall not be deemed to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to be cured upon the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection filing with the valid and proper authorization, issuance and sale Commission of the Q2 2020 Financial Report, whether or not the Notes pursuant have been accelerated prior to this Agreement and the applicable Terms Agreement, or the issuance and transfer such filing”;
(d) As of the Collateral Certificate pursuant to the Pooling and Servicing Agreementdate hereof, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except except for the UnderwritersReporting Default, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event Default or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.is continuing under the Indenture; and
(ie) Based on The Issuer further agrees that during the Noteholder Forbearance Period it will promptly upon the written request therefor, provide Xxxxxx and Centerview with such information currently available to, and in the reasonable belief of, relating to the Issuer, the Issuer is not engaged (whether Guarantors or their Subsidiaries as defendant or otherwise) inXxxxxx and Centerview reasonably request from time to time, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have information may be provided on a material adverse effect on the Noteholders“professional eyes only” basis.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 2 contracts
Samples: Forbearance Agreement (GTT Communications, Inc.), Forbearance Agreement (GTT Communications, Inc.)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms By executing this Subscription Agreement, the Issuer represents, warrants and covenants to each Underwriter as the Purchaser that:
(a) the Issuer is now and at the Closing will be a corporation validly subsisting under the laws of the date hereof Province of British Columbia, and has the corporate capacity and is duly licensed to own its assets and to carry on its business as presently owned and carried on by the Issuer;
(b) the Issuer has all necessary corporate power, authority and capacity to enter into and carry out its obligations under this Subscription Agreement and all other agreements and instruments to be executed by the Purchaser as contemplated by this Subscription Agreement;
(c) the execution and delivery of this Subscription Agreement and such other agreements and instruments and the consummation of the Closing Date transactions contemplated by this Subscription Agreement and such other agreements and instruments have been duly and validly authorized by the Issuer;
(unless otherwise specifiedd) the Purchased Securities have been duly authorized for issuance and upon issuance pursuant to the provisions hereof will be validly issued and fully paid as follows:non-assessable common shares in the capital of the Issuer;
(e) this Subscription Agreement constitutes a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms subject, however, to the customary limitations with respect to bankruptcy, insolvency or other laws affecting creditors’ rights generally and to the availability of equitable remedies;
(f) the execution and delivery of this Subscription Agreement and the compliance by the Issuer with the terms hereof will not result in any breach, or be in conflict with, or constitute a default under, or create a state of facts which after notice or lapse of time or both would constitute a default under, any term or provision of the Issuer’s constating documents or by-laws, or resolutions of the directors of the Issuer;
(g) no approval, authorization, consent or order of, and no filing, registration or recording with, any governmental authority is required of the Issuer in connection with the execution and delivery or with the performance by the Issuer of this Subscription Agreement other than compliance with the applicable Securities Laws;
(h) the Issuer is a “reporting issuer” in the Qualifying Provinces and the Issuer is not in default of any of the material requirements of the applicable Securities Laws;
(i) The Registration Statement has been filed with the Commission common shares of the Issuer are listed and such Registration Statementposted for trading on the TSX and, as amended, has become effective; and the conditions to the use best of a registration statement on Form S-3 under its knowledge, the Act, as set forth Issuer is not in default of any of the General Instructions to Form S-3, and material listing or filing requirements of the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration StatementTSX;
(iij) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date filed with applicable securities regulatory authorities true and complete copies of the Registration Statement, Issuer Public Documents that the Registration Statement conformed in all material respects with Issuer is required to file therewith. The Issuer Public Documents at the applicable requirements of the Act and the Rules and Regulations, and time filed: (a) did not include contain any misrepresentations or any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing misleading; and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform complied in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as requirements of the applicable settlement date of each NoteSecurities Laws. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the The Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of has not filed any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection confidential material change report with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes British Columbia Securities Commission or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event securities authority or Event of Default regulator or any event stock exchange or other self-regulatory authority which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available toat the date hereof remains confidential. For the purpose hereof, “Issuer Public Documents” means all forms, reports, schedules, statements and in the reasonable belief of, the Issuer, other documents filed by the Issuer is not engaged (whether as defendant or otherwise) insince December 31, nor has 2008, with all applicable securities regulatory authorities and the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations TSX and warranties of the Issuer in the Indenture will be true and correct in all material respects.applicable self-regulatory organizations; and
Appears in 1 contract
Samples: Share Purchase Agreement (Fronteer Development Group Inc)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(iii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusTime of Sale Information, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Time of Sale Information that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iiiii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iviii) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary ProspectusInformation;
(viv) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon In addition to the execution of representations, warranties and covenants in the applicable Terms AgreementIndenture, the Issuer hereby represents, warrants and covenants covenants, to each Underwriter as the Indenture Trustee for the benefit of the date hereof Secured Parties related to the Series 2014-2 Notes and as of the Closing Date (unless otherwise specified) as followsSeries 2014-2 Special Indebtedness Interests, from, and including, the Series 2014-2 Issuance Date, continuously thereafter to, and until, and including, the Sale Termination Date, the following:
(ia) The Registration Statement it has been filed with duly incorporated, is in good standing and has full power and authority, and all governmental licenses, authorizations, consents and approvals, to execute and deliver this Indenture Supplement, the Commission Series 2014-2 Notes, the Series 2014-2 Special Indebtedness Interests and such Registration Statement, as amended, has become effective; each other Transaction Document to which it is a party and the conditions related Note Purchase Agreement and to the use of a registration statement on Form S-3 under the Actperform its obligations hereunder and thereunder, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, each case except with respect to where any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date failure will not, include any untrue statement of a material fact alone or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); providedaggregate, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectushave a Material Adverse Effect;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed its execution and delivery of this Indenture Supplement, the Series 2014-2 Notes, the Series 2014-2 Special Indebtedness Interests and each other Transaction Document to which it is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indentureparty, and to authorize the issuance of the Notesrelated Note Purchase Agreement, and to consummate the transactions contemplated by the Indenture its performance hereunder and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals thereunder (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust corporate action on the part of the Issuer. Neither the execution and delivery (including any necessary shareholder action), (ii) require no action by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions respect of, or constitute a material default underfiling with, any Governmental Authority, except such as have been taken or made on or before the Trust AgreementIssuance Date, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with will not contravene any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, Applicable Law except to the extent that the enforceability thereof may be subject failure to bankruptcycomply therewith will not have a Material Adverse Effect, insolvency(iv) will not contravene or constitute a default under any judgment, reorganizationinjunction, receivership, conservatorship, moratorium order or other similar laws now decree binding upon it or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect its properties except to the Issuer extent that any such contravention or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, default will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.Material Adverse Effect and
Appears in 1 contract
Samples: Indenture Supplement
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms AgreementThe Issuer hereby represents and warrants to, the Issuer represents, warrants and covenants to each Underwriter with the Subscriber that, as of at the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, this Agreement and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that Closing: the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon is a valid and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus subsisting corporation duly incorporated and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State Province of DelawareBritish Columbia; the Issuer has complied, or will comply, with power all applicable corporate and authority to own its properties securities laws and conduct its business as described regulations in connection with the Preliminary Prospectus offer, sale and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of Securities; this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have when accepted, has been duly authorized by all necessary statutory trust corporate action on the part of the Issuer and, subject to acceptance by the Issuer. Neither , constitutes a valid obligation of the execution Issuer legally binding upon it and delivery enforceable in accordance with its terms; the Issuer will reserve or set aside sufficient common shares in its treasury to issue the common shares underlying the Warrants, and upon their issuance and full payment therefor, such common shares will be duly and validly issued as fully paid and non- assessable; the Issuer is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Public Record and except as disclosed therein, all agreements by which the Issuer holds an interest in a property, business or asset are in good standing in all material respects according to their terms; the financial statements included in the Public Record accurately reflect the financial position of the Issuer as at the dates thereof, and no adverse material changes in the financial position of the Issuer have taken place since the date of the Issuer’s last financial statements, except as filed in the Public Record; as of the date of this Agreement, all material information concerning the Issuer is disclosed and filed in the Public Record and all documents previously published or filed by the Issuer in the Public Record contain no untrue statement of such instrumentsa material fact as at the date thereof nor do they omit to state a material fact which, nor at the performance date thereof, was required to have been stated or was necessary to prevent a statement that was made from being false or misleading in the circumstances in which it was made; the creation, issuance and sale of the Securities by the Issuer of the transactions herein or therein contemplateddoes not and will not conflict with, nor the compliance by the Issuer with the provisions hereof or thereof, and does not and will (i) conflict with or not result in a breach of of, any of the material terms and provisions ofterms, conditions or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree its constating documents or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract agreement or other instrument to which the Issuer is a party; the common shares underlying the Units will, at the time of issue, be duly allotted, validly issued, fully paid and non-assessable upon receipt by the Issuer of full payment therefor; the Issuer is not a party to any actions, suits or by proceedings which it is boundcould materially affect its business or financial condition, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of and to the Issuer’s property pursuant knowledge no such actions, suits or proceedings have been threatened as at the date hereof, except as disclosed in the Public Record; to the terms of any such indentureIssuer’s knowledge, mortgage, contract no order ceasing or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and suspending trading in the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf securities of the Issuer pursuant to or prohibiting the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly sale of such securities that has been issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect is currently outstanding to the Issuer or its directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened; and except as set out in the event Public Record or herein, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming an agreement or option for the issue or allotment of any moratorium unissued common shares of the Issuer or similar occurrence affecting any other security convertible or exchangeable for any such common shares or to require the Issuer to purchase, redeem or otherwise acquire any of the issued or outstanding common shares of the Issuer. The Subscriber acknowledges and agrees that the representations and warrantiescontained in this Agreement are made by the Subscriber with the intention that such representations and warranties may be relied upon by the Issuer and the Issuer’s Counsel in determining the Subscriber’s eligibility to general principles purchase the Units under applicable laws, or, if applicable, the eligibility of equityothers on whose behalf the Subscriber is contracting hereunder to purchase the Units under applicable laws. All approvalsThe Subscriber further agrees that, authorizations, consents, orders by accepting delivery of any certificate or other actions of any persondocument representing the Securities, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or it will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, representing and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, warranting that the representations and warranties of the Issuer in the Indenture will be contained herein are true and correct as at the Closing Date with the same force and effect as if they had been made by the Subscriber on the Closing Date and that they will survive the purchase by the Subscriber of the Units and will continue in all material respectsfull force and effect notwithstanding any subsequent disposition by the Subscriber of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s 's ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s 's property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ ' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s 's fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon The Issuer hereby represents and warrants to and covenants with the execution Underwriter that:
(a) The Issuer is a duly organized public school district and political subdivision of the applicable Terms State of New Mexico (the “State”) duly created, organized and existing under the laws of the State, is in good standing with and is duly accredited by the State’s Public Education Department (the “PED”) and has full legal right, power and authority under the Constitution and general laws of the State, and Sections 6-15A-1 et. Seq., NMSA 1978 (collectively, the “Provisions”), and at the date of the Closing will have full legal right, power and authority under the Provisions (i) to adopt the Note Resolution and to make the delegations set forth therein and take the actions authorized thereby, (ii) to enter into, execute and deliver this Agreement, the Note Resolution, the Undertaking, the paying agent/registrar agreement between the Issuer and BOKF, NA (the “Paying Agent/Registrar”) dated on or before the date of the Closing (the “Paying Agent Agreement”) and all documents required hereunder and thereunder to be executed and delivered by the Issuer (this Agreement, the Paying Agent Agreement, the Undertaking, and the Note Resolution are collectively hereinafter referred to as the “Issuer Documents”), (iii) to sell, issue and deliver the Notes to the Underwriter as provided herein, and (iv) to carry out and consummate the transactions described in the Issuer Documents and the Official Statement, and the Issuer has complied, and will at the Closing be in compliance, in all material respects with the terms of the Provisions and the Issuer Documents as they pertain to such transactions;
(b) By all necessary official action of the Issuer prior to or concurrently with the acceptance of this Agreement, the Issuer represents, warrants and covenants has duly authorized all necessary action to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
be taken by it for (i) The Registration Statement has been filed the adoption of the Note Resolution and the issuance and sale of the Notes in accordance with the Commission Note Resolution and such Registration the Provisions, (ii) approval of the Preliminary Official Statement and Official Statement, as amended(iii) the approval, has become effective; execution and delivery of, and the conditions performance by the Issuer of the obligations on its part, contained in the Notes and the Issuer Documents, and (iv) the consummation by the Issuer of all other transactions described in the Official Statement and the Issuer Documents and any and all such other agreements and documents as may be required to be executed, delivered and/or received by the Issuer in order to carry out, give effect to, and consummate the transactions described herein and in the Official Statement;
(c) The Notes, when issued, delivered and paid for, in accordance with the Issuer Documents, will constitute legal, valid and binding obligations of the Issuer entitled to the use benefits of a registration statement on Form S-3 under the ActNote Resolution and will be enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws and principles of sovereign immunity or principles of equity relating to or affecting the enforcement of creditors’ rights; upon the issuance, authentication and delivery of the Notes as aforesaid, the Notes will be payable from an annual ad valorem tax levied without legal limitation as to rate or amount, as set forth in the General Instructions Note Resolution;
(d) To the best of its knowledge, the Issuer is not in breach of or default in any material respect under any applicable constitutional provision, law or administrative regulation of the State or the United States, or any applicable judgment or decree, relating to Form S-3the issuance of the Notes or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Issuer is a party or to which the Issuer is or any of its property or assets are otherwise subject, and no event has occurred or is continuing, that with the conditions passage of Rule 415 time or the giving of notice, or both, constitutes or would constitute a material default or event of default by the Issuer under any of the foregoing; and the execution and delivery of the Notes and the Issuer Documents and the adoption of the Note Resolution and compliance with the provisions on the Issuer’s part contained therein will not conflict with or constitute a material breach of or default under any constitutional provision, any administrative regulation relating to the issuance of the Notes, or any judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Issuer is a party or to which the Issuer is or to which any of its property or assets are otherwise subject;
(e) All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization of, which would constitute a condition precedent to, or the absence of which would materially adversely affect the due performance by the Issuer of its obligations under the Act, Issuer Documents and the Notes have been satisfied duly obtained, except for such approvals, consents and orders as may be required under the Blue Sky or securities laws of any jurisdiction in connection with the offering and sale of the Notes and their approval by the New Mexico Attorney General (the “Attorney General”);
(f) The Notes and the Note Resolution conform to the descriptions thereof contained in the Official Statement under the captions “THE NOTES” “SECURITY AND REMEDIES” and “SOURCES AND USES OF FUNDS”; the proceeds from the sale of the Notes will be applied generally as described in the Official Statement under the caption “SOURCES AND USES OF FUNDS”; and the Undertaking conforms to the description thereof contained in the Official Statement under the caption “CONTINUING DISCLOSURE UNDERTAKING” and the form included in APPENDIX E;
(g) Except as otherwise set forth in the Preliminary Official Statement or the Official Statement, there is no litigation, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or, to the best knowledge of the Issuer, threatened against the Issuer, affecting the existence of the Issuer or the titles of its officers to their respective offices, or affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Notes or the collection of ad valorem taxes for the payment of principal of and interest on the Notes pursuant to the Note Resolution or in any way contesting or affecting the validity or enforceability of the Notes or the Issuer Documents, or contesting the exclusion from gross income of interest on the Notes for federal income tax purposes, or contesting in any way the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto, or contesting the powers of the Issuer or any authority for the issuance of the Notes, the adoption of the Note Resolution or the execution and delivery of the Issuer Documents, nor, to the best knowledge of the Issuer is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Notes or the Issuer Documents;
(h) As of the date thereof, the Preliminary Official Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that for the purpose of this Agreement and any certificate delivered by the Issuer in accordance herewith, the Issuer makes no representations with respect to the Registration Statementdescriptions in the Preliminary Official Statement or the Official Statement of The Depository Trust Company, New York, New York (“DTC”), or its book-entry-only system”;
(iii) As At the time of the Closing Date, Issuer’s acceptance hereof and (unless the Registration Statement, Official Statement is amended or supplemented pursuant to paragraph (d) of Section 3 of this Agreement) at all times subsequent thereto during the Preliminary Prospectus period up to and including the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration StatementClosing, the Registration Official Statement conformed in all material respects with the applicable requirements of the Act does not and the Rules and Regulations, and did will not include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading andmisleading;
(j) If the Official Statement is supplemented or amended pursuant to paragraph (d) of Section 3 of this Agreement, on at the Closing Datetime of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto during the period up to and including the date of the Closing, the Registration Official Statement and the Prospectus as so supplemented or amended will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading;
(it being understood that no representation k) The Issuer will apply, or warranty is made cause to be applied, the proceeds from the sale of the Notes as provided in and subject to all of the terms and provisions of the Note Resolution and will not take or omit to take any action which action or omission will adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Notes;
(l) The Issuer will furnish such information and execute such instruments and take such action in cooperation with respect to the omission Underwriter as the Underwriter may reasonably request (A) to
(y) qualify the Notes for offer and sale under the Blue Sky or other securities laws and regulations of pricing such states and price-dependent information, which information shall of necessity appear only other jurisdictions in the final Prospectus); United States as the Underwriter may designate and (z) determine the eligibility of the Notes for investment under the laws of such states and other jurisdictions and (B) to continue such qualifications in effect so long as required for the distribution of the Notes (provided, however, that the Issuer makes such actions shall be at no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished expense to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer be required to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing qualify as a Delaware statutory trust in good standing foreign corporation or to file any general or special consents to service of process under the laws of any jurisdiction) and will advise the State Underwriter immediately of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated receipt by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except Issuer of any notification with respect to the securities laws suspension of the qualification of the Notes for sale in any foreign jurisdiction or the state securities initiation or Blue Sky laws threat of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals any proceeding for that purpose;
(i) The financial statements of, and other financial information regarding, the Issuer in the Official Statement fairly present the financial position and results of the Issuer as of the dates and for the periods therein set forth; (ii) the audited financial statements have been prepared in accordance with generally accepted accounting principles consistently applied; and (iii) the other financial information has been determined on a basis substantially consistent with that of the Issuer’s audited financial statements included in the Official Statement. Prior to the Closing, the Issuer will not take any action within or under its control that will cause any adverse change of a material nature in such financial position, results of operations or condition, financial or otherwise, of the Issuer from that described in the Official Statement. Except as may otherwise be described in the Official Statement, the Issuer is not a party to any litigation or other proceeding pending or, to its knowledge, threatened which, if decided adversely to the Issuer, would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material materially adverse effect on the financial condition of the Issuer’s ability ;
(n) Prior to consummate the Closing, except as otherwise disclosed in the Official Statement, the Issuer will not offer or issue any bonds, notes or other obligations for borrowed money secured by ad valorem tax revenues without the prior approval of the Underwriter, which approval shall not be unreasonably withheld;
(o) Any certificate, signed by any official of the Issuer authorized to do so in connection with the transactions contemplated by the Indenture or described in this Agreement.
(c) The execution, delivery shall be deemed a representation and performance warranty by the Issuer of this Agreementto the Underwriter as to the statements made therein;
(p) To the extent requested by the Underwriter, the applicable Terms Agreement Issuer has delivered to the Underwriter true, correct, complete and legible copies of all written information, applications, reports or other documents of any nature whatsoever submitted to any rating agency for the Indenture and the issuance purpose of obtaining a rating for the Notes and, in each instance, true, correct, complete and legible copies of all correspondence or other communications relating thereto; and
(q) To the consummation of the transactions contemplated hereby best knowledge and thereby have been duly authorized by all necessary statutory trust action on the part belief of the Issuer. Neither , the execution and delivery Official Statement contains information, including financial information or operating data, as required by the Issuer of such instrumentsRule. Except as set forth in the Official Statement, nor during the performance by last five years, the Issuer of the transactions herein or therein contemplated, nor the compliance has complied in all material respects with all continuing disclosure undertakings entered into by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing DateRule.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Samples: Note Purchase Agreement
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the 2.1 The Issuer represents, represents and warrants to and covenants to each Underwriter as of with the date hereof and as of the Closing Date (unless otherwise specified) as followsShareholder that:
(ia) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act is a valid and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been subsisting corporation duly formed and is validly existing as a Delaware statutory trust in good standing incorporated under the laws of the State its jurisdiction of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business incorporation and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to all corporate filings required under the securities laws of any foreign jurisdiction such jurisdiction;
(b) the Issuer is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the state securities or Blue Sky laws of various jurisdictions)that jurisdiction and is not otherwise precluded from carrying on business or owning property in such jurisdictions by any other commitment, in each jurisdiction in which failure to so qualify agreement or obtain such licenses document and approvals (i) would no steps or proceedings have a material adverse effect on each been taken by any Person, voluntary or otherwise, requesting or authorizing the dissolution or winding-up of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.;
(c) The the Issuer has full corporate power and authority to carry on its business as now carried on by it, the creation, execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have has been duly authorized by all necessary statutory trust corporate action on the part of the Issuer. Neither , the execution person executing this Agreement on behalf of the Issuer has the necessary power and delivery authority to do so and this Agreement constitutes a valid and legally binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(d) the authorized capital of the Issuer consists of an unlimited number of Common Shares without par value and an unlimited number of preferred shares, of which 68,314,409 Common Shares and no preferred shares are issued and outstanding as of the Effective Date;
(e) other than as has been disclosed to the Shareholder by the Issuer in connection with the Offering, no Person has any agreement, option, right or privilege (whether pre-emptive, contractual or otherwise) capable of becoming an agreement, for the purchase, acquisition, for or issuance of Common Shares or other securities of the Issuer, except for outstanding warrants to purchase up to 12,500,000 Common Shares, and stock options to purchase up to 5,303,112 Common Shares.
(f) the Issuer is a “reporting issuer” or the equivalent in each of the Reporting Jurisdictions and not on the list of reporting issuers in default and is in compliance in all material respects with its obligations under the Applicable Legislation of such instruments, nor jurisdictions and of the performance by TSXV;
(g) the Issuer has filed all documents in the Public Record required to be filed by it in accordance with Applicable Legislation. None of the transactions herein documents comprising a part of or therein contemplatedany portion of the Public Record contains an untrue statement of a material fact as of the date thereof nor do they omit to state a material fact which, nor at the compliance by date thereof, was required to have been stated or was necessary to prevent a statement that was made from being false or misleading in the circumstances in which it was made and the Issuer with has disclosed in the provisions hereof or thereofPublic Record all material facts relating to its business, will assets and financial condition;
(h) nothing is this agreement: (i) conflict conflicts with or result results in a any breach or violation of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreementdeed of trust, contract lease or other agreement or instrument to which the Issuer is a party or by which it is they or any of their properties or assets thereof are bound; (ii) conflicts with or results in any material breach or violation of any provisions of, or (iv) result in constitute a default under the creation notice of articles or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf articles of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded or any resolution passed by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation directors (or any committee thereof) or shareholders of the Issuer, enforceable against the Issuer in accordance with its termsor any statute or any judgment, except to the extent that the enforceability thereof may be subject to bankruptcydecree, insolvencyorder, reorganizationrule, receivership, conservatorship, moratorium policy or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or regulation of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat ofauthority, any legalarbitrator, arbitration, administrative stock exchange or other proceedings the result of Regulatory Authority which might could have a material adverse effect on the Noteholders.business, operations or financial condition of the Issuer; (iii) causes the suspension or revocation of any authorization, consent, approval or license previously granted to the Issuer that is material to the Issuer and currently in effect which could have a material adverse effect on the business operations or financial condition of the Issuer; or (iv) materially restricts, hinders, impairs or limits the ability of the Issuer to carry on its business in any material respect as and where it is now being carried on;
(i) the Financial Statements present fairly the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer as of the date thereof, and the business of the Issuer has been carried on in the usual and ordinary course consistent with past practice since the date of the most recent Financial Statements;
(j) As the Issuer does not have any loans, notes or other indebtedness outstanding to any of its shareholders, officers, directors or employees, past or present, or any Person not dealing at “arm’s length” (as such term is used in the ITA) except as disclosed in the Public Record;
(k) the Issuer maintains a system of internal control over financial reporting to provide reasonable assurance regarding reliability of financial reporting and the preparation of the Closing DateFinancial Statements for external purposes;
(l) all taxes, duties, royalties, levies, imposts, assessments, deductions, charges or withholdings and all liabilities with respect thereto including any penalty and interest payable with respect thereto (collectively, the representations “Taxes”) due and warranties payable by the Issuer have been paid. All tax returns, declarations, remittances and filings required to be filed by the Issuer have been filed with all applicable governmental authorities and all such returns, declarations, remittances and filings are complete and accurate and no material fact or facts have been omitted therefrom which would make any of them misleading. No examination of any tax return of the Issuer is currently in progress by, and there are no issues or disputes outstanding with, any applicable governmental authority respecting any Taxes that have been paid, or may be payable, by the Indenture will be Issuer;
(m) the Issuer is resident in Canada for purposes of the ITA;
(n) the Issuer has conducted and is conducting business in compliance in all material respects with all applicable laws, rules, regulations, tariffs, orders, consents and directives of each jurisdiction in which it carries on business and with all material agreements to which it is a party and possesses all material approvals, consents, certificates, registrations, authorizations, permits and licences issued by the appropriate provincial, municipal, federal, state or other regulatory agency or body necessary to carry on the business currently carried on by it, is in compliance in all material respects with the terms and conditions of all such agreements and all such approvals, consents, certificates, authorizations, permits and licences and with all laws, regulations, tariffs, rules, orders and directives material to its operations, and the Issuer has not received any notice of the modification, revocation or cancellation of, any intention to modify, revoke or cancel or any proceeding relating to the modification, revocation or cancellation of any such agreement, approval, consent, certificate, authorization, permit or licence;
(o) the Wholly-Owned Projects list on Schedule A is complete, true and correct in all material respects.;
(p) the Issuer has sufficient rights, clear of any material title defect or encumbrance, to all of its mining properties. The Issuer holds all mineral rights required to continue its business and operations as currently conducted and the Issuer has not received any notice, whether written or oral, from any person with jurisdiction or applicable authority of any revocation or intention to revoke or cancel the Issuer’s interest in any material mining rights nor has the Issuer received any compliance orders, citations, or notices relating to non-compliance or alleged non-compliance, relating to the mining rights. The mineral rights held by the Issuer are free and clear of material encumbrances and royalty burdens other than as described in the Public Record;
(q) to the best of its knowledge, the Issuer (i) is in compliance with all applicable federal, territorial and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, the “Environmental Laws”), (ii) has received all necessary permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business as presently conducted (collectively, the “Environmental Permits”),
Appears in 1 contract
Samples: Investor Rights Agreement
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iiiA) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon The Issuer represents and warrants that:
(a) It is a duly organized and validly existing municipality and political subdivision existing under the execution laws of the applicable Terms State.
(b) It has full legal right, power and authority pursuant to the Act to finance the Project through the issuance of the Refunding Bonds; has made the necessary findings of public purpose, has given any necessary notices and has taken all other steps and followed all procedures required by the Constitution and laws of the State (including the Act) in connection therewith; and has full legal right, power and authority to (i) enter into this Agreement, the Issuer representsBond Purchase Agreement, warrants the Letter of Representations and covenants to each Underwriter as the Indenture, (ii) issue, sell and deliver the Refunding Bonds and (iii) carry out and consummate all other transactions contemplated by this Agreement, the Bond Purchase Agreement, the Letter of Representations and the date hereof and as of the Closing Date Indenture.
(unless otherwise specifiedc) as follows:
It has duly authorized (i) The Registration Statement has been filed with the Commission execution, delivery and such Registration Statementperformance of this Agreement, as amendedthe Refunding Bonds, has become effective; the Bond Purchase Agreement, the Letter of Representations and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3Indenture, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As the taking of any and all such actions as may be required on the part of the Closing DateIssuer to carry out, give effect to and consummate the transactions contemplated by such instruments.
(d) This Agreement, the Registration StatementBond Purchase Agreement, the Preliminary Prospectus Letter of Representations and the ProspectusIndenture constitute legal, except valid and binding obligations of the Issuer, enforceable in accordance with respect to any modification to which their respective terms; this Agreement, the Representatives Bond Purchase Agreement, the Letter of Representations and the Indenture have agreed been duly authorized, executed and delivered by the Issuer; and, when authenticated by the Trustee in writingaccordance with the provisions of the Indenture, shall be in all substantive respects in the form furnished to the Representatives before such date orRefunding Bonds will have been duly authorized, to the extent not completed on such dateexecuted, shall contain only such specific additional information issued and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as delivered and will constitute legal, valid and binding special obligations of the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects conformity with the applicable requirements provisions of the Act and the Rules and RegulationsConstitution of the State.
(e) There is no action, and did not include suit, proceeding, inquiry, or investigation at law or in equity or before or by any untrue statement court, public board or body, pending or, to the best of a material fact or omit the knowledge of the Issuer, threatened against the Issuer, nor to state the best of the knowledge of the Issuer is there any material fact required to be stated therein or necessary to make basis therefor, which in any manner questions the statements therein not misleading and, on validity of the Closing DateAct, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements powers of the Act and Issuer referred to in paragraph (b) above or the Rules and Regulations, and neither validity of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to proceedings taken by the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the NotesRefunding Bonds or wherein any unfavorable decision, and to consummate ruling or finding could materially adversely affect the transactions contemplated by this Agreement or which, in any way, would adversely affect the Indenture and is duly qualified to do business and is in good standing validity or enforceability of the Refunding Bonds, the Indenture, the Letter of Representations, the Bond Purchase Agreement or this Agreement (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction other instrument required or the state securities or Blue Sky laws of various jurisdictions), contemplated for use in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate consummating the transactions contemplated by the Indenture or this Agreementthereby and hereby).
(cf) The execution, execution and delivery and performance by the Issuer of this Agreement, the applicable Terms Refunding Bonds, the Letter of Representations, the Bond Purchase Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the in compliance by the Issuer with the provisions hereof or thereof, of each of such instruments will (i) not conflict with or result in constitute a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenturecommitment, mortgage, agreement, contract Agreement or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of under any lien, charge or encumbrance upon any provision of the Issuer’s property pursuant to Act, the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf Constitution of the Issuer pursuant State or any existing law, rule, regulation, ordinance, judgment, order or decree to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against which the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Actsubject.
(g) Except for The Issuer will do or cause to be done all things necessary, so far as lawful, to preserve and keep in full force and effect its existence or to assure the Underwritersassumption of its obligations under this Agreement, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale Letter of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief ofRepresentations, the Issuer, Indenture and the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or Refunding Bonds by any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholderssuccessor public body.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 0000 Xxx. The Issuer does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have Representative has agreed in writing, shall be in all substantive respects in the form furnished to the Representatives Representative before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the RepresentativesRepresentative) as the Issuer has advised the RepresentativesRepresentative, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives Representative specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives Representative expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the The Issuer represents, warrants and covenants to each Underwriter as for the benefit of the date hereof Noteholder and as of the Closing Date (unless otherwise specified) Borrower, as follows:
(ia) The Registration Statement has been filed with the Commission Issuer is a public body corporate and such Registration Statement, as amended, has become effective; politic duly created and the conditions to the use of a registration statement on Form S-3 existing under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As laws of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the NotesState.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing authorized under the laws of Act to issue the State of Delaware, with power Series 2015 Note and authority loan the proceeds thereof to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the IndentureBorrower, and the Issuer is duly authorized to authorize enter into this Agreement, the issuance of Tax Agreement and the Notes, Series 2015 Note and to consummate the transactions contemplated by the Indenture hereby and is duly qualified thereby and to do business perform all of its obligations hereunder and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreementthereunder.
(c) The Issuer has duly authorized the issuance of the Series 2015 Note and the execution and delivery of this Agreement and the Tax Agreement under the terms and provisions of a resolution or by other appropriate official action, and further represents, covenants and warrants that all requirements have been met and procedures have occurred in order to ensure the enforceability of the Series 2015 Note and this Agreement against the Issuer. The Issuer has taken all necessary action and has complied with all provisions of the Act, including but not limited to the making of the findings required by the Act, required to make the Series 2015 Note, this Agreement and the Tax Agreement the valid and binding obligations of the Issuer.
(d) The Series 2015 Note and, assuming the due authorization and execution of this Agreement and the Tax Agreement by the other parties thereto, this Agreement and the Tax Agreement are legal, valid and binding obligations of the Issuer, enforceable in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or affecting the enforcement of creditors' rights.
(e) The Issuer has assigned to the Noteholder all of the Issuer's rights in this Agreement (except the Reserved Rights); the Issuer will not pledge, mortgage or assign this Agreement or its duties and obligations hereunder to any person, firm or corporation, except as provided under the terms hereof.
(f) None of the issuance of the Series 2015 Note, the execution and delivery of this Agreement or the Tax Agreement, the consummation of the transactions contemplated hereby or the fulfillment of or compliance with the terms and conditions of the Series 2015 Note or this Agreement or the Tax Agreement violates any law, rule, regulation or order, conflicts with or results in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Issuer is now a party or by which it is bound or constitutes a default under any of the foregoing or results in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Issuer under the terms of any instrument or agreement.
(g) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of the Issuer's knowledge, threatened against or affecting the Issuer, challenging the Issuer's authority to issue the Series 2015 Note or to lend the proceeds thereof to the Borrower or to enter into this Agreement or the Tax Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of the Series 2015 Note, this Agreement or the Tax Agreement, or the exclusion of interest on the Series 2015 Note from gross income for federal tax purposes under the Code, or would materially and adversely affect any of the transactions contemplated by this Agreement or the Tax Agreement.
(h) After reasonable public notice given by publication on May 13, 2015 in The Villages Daily Sun, a newspaper published and of general circulation in Sumter County, Florida, the Issuer held a public hearing on May 28, 2015 (the "Xxxxxx XXX Hearing") concerning the issuance of the Series 2015 Note and the nature and location of the Project. The Issuer has jurisdiction over the area in which that portion of the Project is located in Sumter County, Florida.
(i) After reasonable public notice given by publication on June 7, 2015 in The Tampa Bay Times, a newspaper published and of general circulation in Pasco County, Florida, the Board of County Commissioners of Pasco County, Florida held a public hearing on June 22, 2015 concerning the issuance of the Series 2015 Note and the nature and location of the Project. Subsequent to such hearing, Pasco County, Florida and the Issuer entered into an Interlocal Agreement, dated as of August 1, 2015, approving the Project and the Loan to the Borrower, and authorizing that portion of the Project located within Pasco County.
(j) After reasonable public notice given by publication on June 8, 2015 in The Tampa Bay Times, a newspaper published and of general circulation in Pinellas County, Florida, the Board of County Commissioners of Pinellas County, Florida held a public hearing on June 23, 2015 concerning the issuance of the Series 2015 Note and the nature and location of the Project. Subsequent to such hearing, the Pinellas County Industrial Development Authority and the Issuer entered into an Interlocal Agreement, dated as of August 1, 2015, approving the Project and the Loan to the Borrower and authorizing that portion of the Project to be located within Pinellas County.
(k) After the Xxxxxx XXX Hearing, the Board of County Commissioners of Sumter County, the elected legislative body for the Issuer, approved the issuance of the Series 2015 Note by duly adopting a Resolution No. 2015-15 on June 9, 2015. Subsequently, the Issuer duly adopted a resolution on July 16, 2015 authorizing the issuance of the Series 2015 Note and the execution and delivery of the documentation related thereto.
(l) The Issuer has taken all actions and received all necessary authorizations, approvals or consents of any Governmental Authority for the execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrumentobligations hereunder.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Samples: Financing Agreement
Representations, Warranties and Covenants of the Issuer. Upon The Issuer represents and warrants that:
(a) It is a duly organized and validly existing municipality and political subdivision existing under the execution laws of the applicable Terms State.
(b) It has full legal right, power and authority pursuant to the Act to finance the Project through the issuance of the Prior Bonds and to refinance the Project and refund the Prior Bonds through the issuance of the Project Bonds; has made the necessary findings of public purpose, has given any necessary notices and has taken all other steps and followed all procedures required by the Constitution and laws of the State (including the Act) in connection therewith; and has full legal right, power and authority to (i) enter into this Agreement, the Issuer representsBond Placement Agreement, warrants the Letter of Representations and covenants to each Underwriter as the Indenture, (ii) issue, sell and deliver the Project Bonds and (iii) carry out and consummate all other transactions contemplated by this Agreement, the Bond Placement Agreement, the Letter of Representations and the date hereof and as of the Closing Date Indenture.
(unless otherwise specifiedc) as follows:
It has duly authorized (i) The Registration Statement has been filed with the Commission execution, delivery and such Registration Statementperformance of this Agreement, as amendedthe Project Bonds, has become effective; the Bond Placement Agreement, the Letter of Representations and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3Indenture, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As the taking of any and all such actions as may be required on the part of the Closing DateIssuer to carry out, give effect to and consummate the transactions contemplated by such instruments.
(d) This Agreement, the Registration StatementBond Placement Agreement, the Preliminary Prospectus Letter of Representations and the ProspectusIndenture constitute legal, except valid and binding obligations of the Issuer, enforceable in accordance with respect to any modification to which their respective terms; this Agreement, the Representatives Bond Placement Agreement, the Letter of Representations and the Indenture have agreed been duly authorized and executed by the Issuer; and, when authenticated by the Trustee in writingaccordance with the provisions of the Indenture, shall be in all substantive respects in the form furnished to the Representatives before such date orProject Bonds will have been duly authorized, to the extent not completed on such dateexecuted, shall contain only such specific additional information issued and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as delivered and will constitute legal, valid and binding special obligations of the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects conformity with the applicable requirements provisions of the Act and the Rules and RegulationsConstitution of the State.
(e) There is no action, and did not include suit, proceeding, inquiry, or investigation at law or in equity or before or by any untrue statement court, public board or body, pending or, to the best of a material fact or omit the knowledge of the Issuer, threatened against the Issuer, nor to state the best of the knowledge of the Issuer is there any material fact required to be stated therein or necessary to make basis therefor, which in any manner questions the statements therein not misleading and, on validity of the Closing DateAct, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements powers of the Act and Issuer referred to in paragraph (b) above or the Rules and Regulations, and neither validity of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to proceedings taken by the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the NotesPrior Bonds or the Project Bonds or wherein any unfavorable decision, and to consummate ruling or finding could materially adversely affect the transactions contemplated by this Agreement or which, in any way, would adversely affect the Indenture and is duly qualified to do business and is in good standing validity or enforceability of the Project Bonds, the Indenture, the Letter of Representations, the Bond Placement Agreement or this Agreement (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction other instrument required or the state securities or Blue Sky laws of various jurisdictions), contemplated for use in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate consummating the transactions contemplated by the Indenture or this Agreementthereby and hereby).
(cf) The execution, execution and delivery and performance by the Issuer of this Agreement, the applicable Terms Project Bonds, the Letter of Representations, the Bond Placement Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the in compliance by the Issuer with the provisions hereof or thereof, of each of such instruments will (i) not conflict with or result in constitute a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreementany -8- 6 material commitment, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract agreement or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of under any lien, charge or encumbrance upon any provision of the Issuer’s property pursuant to Act, the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf Constitution of the Issuer pursuant State or any existing law, rule, regulation, ordinance, judgment, order or decree to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against which the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Actsubject.
(g) Except for The Issuer will do or cause to be done all things necessary, so far as lawful, to preserve and keep in full force and effect its existence or to assure the Underwritersassumption of its obligations under this Agreement, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale Letter of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief ofRepresentations, the Issuer, Indenture and the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or Bonds by any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholderssuccessor public body.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Samples: Loan Agreement (Dmi Furniture Inc)
Representations, Warranties and Covenants of the Issuer. Upon the execution The representations and warranties of the applicable Terms Issuer set forth in the Bond Purchase Agreement, dated [DATE] (the Issuer represents“Bond Purchase Agreement”), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Issuer, by its execution hereof, represents and warrants to, and covenants to each Underwriter as of and agrees with, the date hereof and as of the Closing Date (unless otherwise specified) Remarketing Agent as follows:
(a) It has the authority to take all actions required or permitted to be taken by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Resolution, the Modal Agreement, the Bond Purchase Agreement and any other instrument or agreement relating thereto (collectively, the “Closing Documents”).
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) The Registration Statement has the execution, delivery and performance of the Closing Documents that have been filed executed in connection with the Commission transactions contemplated hereby and such Registration by the Official Statement, as amended, has become effective; and (ii) the conditions to carrying out, giving effect to, consummation and performance of the use of a registration statement on Form S-3 under transactions and obligations contemplated hereby and by the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied Official Statement; provided that no representation is made with respect to compliance with the Registration Statement;securities or Blue Sky laws of the various states of the United States.
(iic) As The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Official Statement have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally.
(d) The execution and delivery of the Closing Date, Documents that have been executed in connection with the Registration consummation of the transactions contemplated hereby and by the Official Statement, compliance with the Preliminary Prospectus terms, conditions or provisions thereof, and consummation of the Prospectustransactions herein and therein contemplated do not and will not violate any law, except regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer pursuant to, any mortgage, resolution, agreement or instrument to which the Issuer is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the Resolution.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Issuer of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Official Statement have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to any modification to which compliance with the Representatives have agreed in writing, shall be in all substantive respects securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the form furnished to the Representatives Official Statement, there is no action, suit, proceeding, inquiry or investigation before such date or by any court, public board or body pending or, to the extent not completed knowledge of the Issuer, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on such date, shall contain only such specific additional the financial condition or solvency of the Issuer or the ability of the Issuer to perform its obligations under the Closing Documents.
(i) The information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished Official Statement and (ii) the information contained in the Issuer’s most recent filing with the Municipal Securities Rulemaking Board’s (the “MSRB”) Electronic Municipal Market Access system (“EMMA”) made in connection with the Bonds as it relates to the Representatives) as financial condition of the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed is correct in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did does not include any contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the misleading. The Issuer makes no representation or warranty with respect as to any statements or omissions made information in reliance upon and in conformity with information the Official Statement relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus Credit Facility Provider and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated provided by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except Credit Facility Provider for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such saleinclusion therein.
(h) No Early Redemption Event The Issuer has taken no action, and has not omitted to take any action, which action or Event omission to take action would in any way affect or impair the excludability of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation interest on the Bonds from gross income to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Defaultholders thereof for federal income tax purposes.
(i) Based on information currently available toThe Issuer will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that, and in the reasonable belief of, the Issuerunless it consents thereto, the Issuer shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholdersnow so subject.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Samples: Remarketing Agreement
Representations, Warranties and Covenants of the Issuer. Upon By the execution of the applicable Terms AgreementIssuer's acceptance hereof, the Issuer representshereby represents and warrants to, warrants and covenants to each Underwriter agrees with, the Placement Agent that as of the date hereof and as of the Closing Date (unless otherwise specified) as followsacceptance of this Agreement:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;
(v) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(ba) The Issuer has been is duly formed and is validly existing as a Delaware statutory trust in good standing authorized under the constitution and laws of the State of Delaware, with power and authority Mississippi to own its properties and conduct its business as described in issue the Preliminary Prospectus Bonds and to execute, deliver and perform its obligations hereunder and under the IndentureLoan Agreement, the Indenture and the Bonds, to pledge the Security described in the Indenture and pledged thereby in the manner and to authorize the extent therein set forth; all actions required of the Issuer for the issuance of the NotesBonds and the execution and delivery of, and the performance of its obligations under, this Agreement and under the Loan Agreement, the Indenture and the Bonds have been duly and effectively taken; this Agreement, the Loan Agreement and the Indenture have been duly executed, issued and delivered by the Issuer and, assuming the due authorization and execution thereof by the other parties thereto, are valid, binding and enforceable agreements of the Issuer, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and general principles of equity; and the Bonds have been duly authorized, executed, issued and delivered and constitute valid and binding limited obligations of the Issuer, enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and general principles of equity.
(b) There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body or other governmental authority pending, with respect to consummate which the Issuer has received service of process, or, to the knowledge of the Issuer, is threatened against or affecting it wherein an unfavorable decision, ruling or finding could adversely affect the transactions contemplated by this Agreement, or which in any way raises any question concerning the legality, validity or enforceability of this Agreement, the Bonds, the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements)the Loan Agreement, and has obtained all necessary material licenses and approvals (except with respect nor to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses best knowledge and approvals (i) would have a material adverse effect on each belief of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreementis there any basis therefor.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and Loan Agreement, the Indenture and the issuance of the Notes Bonds do not and the consummation of the transactions contemplated hereby and thereby have been duly authorized will not violate any order, injunction, ruling or decree by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by which the Issuer of such instrumentsis bound, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, and do not and will (i) conflict with or result in not constitute a breach of or a default under any of the material terms and provisions ofagreement, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreementlease, contract note or other obligation, instrument or arrangement to which the Issuer is a party or by which it the Issuer or any of its property is bound, or contravene or constitute a violation of any law, rule or regulation to which the Issuer or any of its property is subject, and no approval or other action by, or filing or registration with, any governmental authority or agency is required in connection therewith which has not been previously obtained or accomplished (iv) result except that the Issuer makes no representation as to compliance with state securities or "Blue Sky" laws or the securities laws of the United States or as to any permits, governmental permissions, including environmental clearances, rights and licenses, as may be necessary for the construction and operation of the Project (as defined in the creation Indenture), as to which no representation or imposition of any lien, charge warranty or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrumentcovenant is made).
(d) The Issuer has duly executed and delivered this Agreement information contained under the caption "The Issuer" in each of the Preliminary Private Placement Memorandum and the applicable Terms AgreementPrivate Placement Memorandum is true and correct and does not contain any untrue statement of a material fact and does not omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(e) The Notes have been duly authorized Each of the representations and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf warranties of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus Loan Agreement and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized Indenture are true and effected in accordance with the Pooling correct on and Servicing Agreement as of the applicable settlement date of each Note. When executed hereof and delivered by are hereby made to the parties thereto, the Indenture will constitute a legal, valid Placement Agent on and binding obligation as of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general date hereof as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Dateif set forth herein at length.
(f) The Issuer is will not nowknowingly take any action or fail to take any action it alone could take, and following which action or omission might in any way result in the issuance loss of the Notes, will not be, required to be registered under exclusion of interest on the 1940 ActBonds from gross income for federal income tax purposes.
(g) Except for the Underwriters, Any certificate signed by any member or authorized officer of the Issuer has employed and delivered to the Placement Agent shall be deemed a representation and warranty by the Issuer to the Placement Agent as to the statements made therein.
(h) The Issuer shall cooperate with the Placement Agent in any endeavor to qualify the Bonds for offering and sale under the securities or retained no broker"Blue Sky" laws of such jurisdictions of the United States as the Placement Agent may request; and the Issuer will furnish such information, finderexecute such instruments and take such other action in cooperation with the Placement Agent as the Placement Agent may reasonably request in connection therewith; provided, commission agent however, that the Issuer shall not be required to register as a dealer or other person a broker in any such state or jurisdiction or make any additional representations or warranties in connection with the sale of securities, or to subject itself to service of process in any state or jurisdiction other than the Notes, and neither the Company nor the State of Mississippi. The Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation consents to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge use of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings Preliminary Private Placement Memorandum and the result of which might have a material adverse effect on Private Placement Memorandum by the NoteholdersPlacement Agent in obtaining such qualification.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Samples: Placement Agreement (Pfsweb Inc)
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(i) The Registration Statement has been filed with the Commission and such Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, Regulations and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(iv) The Preliminary Prospectus Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information; and
(v) Other than the Preliminary Prospectus, the Prospectus and the Ratings Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(fi) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(ii) The Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exemptions under the 1940 Act may be available, the Issuer has relied on the exemption from registration set forth in Rule 3a-7 under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
Appears in 1 contract
Representations, Warranties and Covenants of the Issuer. Upon the execution of the applicable Terms Agreement, the Issuer represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) (i) The Registration Statement Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and such the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of a registration statement on Form S-3 under the Actsuch Registration Statement, as set forth in the General Instructions to Form S-3SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the ProspectusDisclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus Disclosure Materials that has have previously been furnished to the Representatives) as the Issuer has advised the Representatives, before such time, will be included or made therein;
(iii) (A) On the effective date of the Registration Statement, the Registration Statement conformed (1) complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will conform comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply Issuer makes no representation or warranty with respect to information contained any statements or omissions made in or omitted from either of the documents based reliance upon written information furnished to the Issuer or the Company by the Underwriters through the Representatives specifically for use and in connection conformity with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below);
(iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus and the Canadian Notice Issuer Free Writing Prospectus, did not, at the Time of Sale did Sale, and will not, and at on the Closing Date will notDate, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Issuer makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus;Information (as defined below); and
(v) Other than the Preliminary Prospectus, the Prospectus, the Ratings Issuer Free Writing Prospectus and the Canadian Notice Issuer Free Writing Prospectus, the Issuer (including its agents and representatives representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
(b) The Issuer has been duly formed and is validly existing as a Delaware statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Preliminary Prospectus Disclosure Materials and to execute, deliver and perform the Indenture, and to authorize the issuance of the Notes, and to consummate the transactions contemplated by the Indenture and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Issuer and its subsidiaries (if any), taken as a whole or (ii) would have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated by the Indenture Indenture, the Asset Representations Review Agreement or this Agreement.
(c) The execution, delivery and performance by the Issuer of this Agreement, the applicable Terms Agreement and the Indenture and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary statutory trust action on the part of the Issuer. Neither the execution and delivery by the Issuer of such instruments, nor the performance by the Issuer of the transactions herein or therein contemplated, nor the compliance by the Issuer with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, the Trust Agreement, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Issuer or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Issuer is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Issuer has duly executed and delivered this Agreement and the applicable Terms Agreement.
(e) The Notes have been duly authorized and when validly issued in accordance with the Indenture, duly authenticated by the Indenture Trustee and delivered by the Owner Trustee on behalf of the Issuer pursuant to the Indenture, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, the Indenture will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Issuer or in the event of any moratorium or similar occurrence affecting the Issuer and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.
(f) The Issuer is not now, and following the issuance of the Notes, will not be, required to be registered under the 1940 Act.
(g) Except for the Underwriters, the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale.
(h) No Early Redemption Event or Event of Default or any event which after any applicable grace period will become an Early Redemption Event or an Event of Default is subsisting in relation to the Notes or any other outstanding notes and no event has occurred which would constitute (after an issue of notes) an Early Redemption Event or Event of Default or any event which after any applicable grace period would become an Early Redemption Event or an Event of Default.
(i) Based on information currently available to, and in the reasonable belief of, the Issuer, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders.
(j) As of the Closing Date, the representations and warranties of the Issuer in the Indenture will be true and correct in all material respects.
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