REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows: (a) that: (i) its most recently published audited consolidated financial statements (the audited accounts); and (ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts; (b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs; (c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its assets and liabilities, financial position, profits and losses and prospects, the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respect; (d) that it is a company duly incorporated and validly existing under the law of its place of incorporation, and has full power and authority to conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by it; (e) that the execution and delivery of the Agreements have been duly authorised by it and constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, or any indenture, trust deed, mortgage or other agreement or instrument to which it is a party or by which it or any of its properties are bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties; (h) that except as disclosed in the Base Prospectus, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplated; (i) that no consent, approval, authorisation, order, registration or qualification of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements; (j) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect; (k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued; (l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein; (m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and (n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C). 4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes. 4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended. 4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 2 contracts
Samples: Programme Agreement, Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statements, statements of the Issuer (if any) were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in the Prospectus Regulation Kingdom of Norway consistently applied and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise), results of operations, prospects or business affairs of the Issuer since the date of the last audited accounts except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all material information with respect to itself the Issuer, the Group and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all (ii) the Base Prospectus does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the Group, of the rights attaching to the Notes to be issued under this Agreement and the reasons for the issuance and its impact on the Issuer or Issuer, (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Base Prospectus contains all the information required by Norwegian law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Regulation;
(d) that it is a company the Issuer and each of its subsidiaries (if any) has been duly incorporated and is validly existing in good standing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the Issuer (i) has all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Base Prospectus and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines;
(f) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which the Issuer is a party or by which the Issuer or its property is bound;
(h) that the Issuer (i) is not in breach of the terms of, nor in default under, any instrument, agreement or order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes under the Programme or proceedings against which might have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated done, by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it Issuer for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (iiA) the execution, issue and offering of Notes under the Programme and compliance by it the Issuer with the terms of such any Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 issued under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.Programme or
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statements, statements of the Issuer (if any) were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in the Prospectus Regulation Kingdom of Norway consistently applied and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise), results of operations, prospects or business affairs of the Issuer since the date of the last audited accounts except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all material information with respect to itself the Issuer, the Group and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all (ii) the Base Prospectus does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making enable investors to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the Group and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or to be issued under this Agreement, (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Base Prospectus contains all the information required by Norwegian law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Directive;
(d) that it is a company the Issuer and each of its subsidiaries (if any) has been duly incorporated and is validly existing in good standing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the Issuer (i) has all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Base Prospectus and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines;
(f) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which the Issuer is a party or by which the Issuer or its property is bound;
(h) that the Issuer (i) is not in breach of the terms of, nor in default under, any instrument, agreement or order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes under the Programme or proceedings against which might have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated done, by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it Issuer for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (iiA) the execution, issue and offering of Notes under the Programme and compliance by it the Issuer with the terms of such any Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 issued under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.Programme or
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer ENEL S.A. (as regards matters concerning itself and Notes issued by it) and ENEL (as regards all matters and all Notes) represents, warrants and undertakes to the Dealers and each of them as follows:
(ai) that:
(iA) its the most recently published audited consolidated financial statements of ENEL included in the Offering Circular (the ENEL audited accounts); and
(iiB) its the most recently published unaudited interim consolidated financial statementsstatements of ENEL, were prepared in each case accordance with the requirements of law and with IFRS consistently applied and that they give a true and fair view of (i) the consolidated financial condition of ENEL as at the date to which they were prepared (the ENEL relevant date) and (ii) the consolidated results of operations of ENEL for the financial period ended on the relevant date and that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise) of ENEL since the date of the last audited accounts, except as disclosed in the Offering Circular;
(ii) that:
(A) the most recently published audited non-consolidated financial statements of ENEL S.A., included in the Offering Circular (if any) (the ENEL S.A. audited accounts); and
(B) the most recently published unaudited interim non-consolidated financial statements of ENEL S.A., were prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly give a true and fair view of (i) its the non-consolidated financial condition of ENEL S.A. as at the date to which they were prepared (the ENEL S.A. relevant date) and (ii) its the non-consolidated results of operationsoperations of ENEL S.A., cash flows and changes in shareholders’ equity for the financial period ended on the ENEL S.A. relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the non-consolidated condition (financial or otherwise) of ENEL S.A. since the date of the last ENEL S.A. audited accounts, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;Offering Circular.
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus Offering Circular contains all material information with respect to itself the Obligors and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all (ii) the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Offering Circular, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Obligors and of the rights attaching to the Notes Notes, (iii) the statements of intention, opinion, belief or expectation contained in the Offering Circular are honestly and reasonably made or held and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Offering Circular contains all the information required by Italian law and regulations, in the case of ENEL, and Luxembourg law and regulations, in the case of ENEL S.A., and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published in accordance with the Prospectus Directive and the reasons for national law implementing the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectProspectus Directive;
(d) that it is a company each Obligor has been duly incorporated and is validly existing in good standing under the law laws of its place jurisdiction of incorporation, incorporation (and has the laws of any other jurisdiction in which it carries on business) with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and Offering Circular and, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that that, in relation to each Obligor, the execution and delivery of the Agreements to which it is a party by such Obligor have been duly authorised by such Obligor and, in the case of Notes where such Obligor is the relevant Issuer, upon due execution, issue and delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements to which it and constitute its is a party, constitute, legal, valid and legally binding obligations of such Obligor enforceable in accordance with their respective terms subject to bankruptcythe laws of bankruptcy (including, without limitation, in relation to ENEL S.A., bankruptcy (faillite), insolvency, its voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent transferconveyance (actio pauliana), reorganisationgeneral settlement with creditors, moratorium, en désastre and reorganisation or similar laws affecting the rights of general applicability relating to or creditors generally) and other laws affecting creditors’ the rights and to general equity principlesof creditors generally;
(f) that Notes issued by it when duly authorisedthat, executedin relation to each Obligor, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the AgreementsAgreements to which it is a party, the issue, offering and distribution of Notes when duly authorised where such Obligor is the relevant Issuer and the performance of the terms of any Notes where it is the relevant Issuer and the Agreements to which it is a party will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to such Obligor or to which its property may be subject and are not contrary to the provisions of the by-laws of such Obligor and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which such Obligor is a party or by which such Obligor or its constitutive documentsproperty is bound;
(g) that no Event of Default or event which with the giving of notice or lapse of time or other condition might constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which might constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition might (after an issue of Notes) constitute such an Event of Default;
(h) that no Obligor (i) is in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is engaged (whether as defendant or otherwise) in, nor has any Obligor knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order administrative or decree other proceedings the result of any government, governmental body which might relate to claims or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes under the Programme or proceedings against which might have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or non-consolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of any Obligor and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of either Obligor;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it any Obligor for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by such Obligor with the terms of any Notes issued under the Programme or (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained to which such Obligor is a party;
(j) that, in relation to each Obligor, all corporate approvals and are authorisations required by such Obligor for or in full force and effect and connection with (iii) the execution, issue and offering of an issue of Notes under the Programme and compliance by it such Obligor with the terms of any Notes issued by it under the Programme will be obtained prior to such Notes willissue and (ii) the execution and delivery of, on or before and compliance with the Issue Date of terms of, the Agreements to which such Notes, Obligor is a party have been obtained and will be are in full force and effect;
(k) that, in relation to each issue of Notes, neither that it nor any of its affiliates (as defined in Rule 405 is not necessary under the Securities Act)laws of Italy or Luxembourg that any Noteholder, nor any person acting Dealer or Agent should be licensed, qualified or otherwise entitled to carry on behalf of business in Italy or Luxembourg (i) to enable any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S enforce their respective rights under the Securities Act Notes or the Agreements or (Regulation S)ii) the Notes being issued or any security solely by reason of the same class execution, delivery or series as performance of the Notes being issuedAgreements or the Notes;
(l) that it has not entered that, except as set forth in the Offering Circular, all payments of principal, premium (if any), interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of Italy in the case of ENEL or Luxembourg in the case of ENEL S.A. will not enter into any contractual agreement with respect to the distribution be made without withholding for or deduction of any Notes except for this Agreement taxes or duties imposed or levied by or on behalf of any such country or any Subscription Agreement referred political subdivision or any authority thereof or therein having the power to hereintax;
(m) thatthat (i) all Notes will, neither upon issue, constitute direct, unconditional and (subject to the provisions of Condition 4) unsecured and unsubordinated obligations of the relevant Issuer and rank pari passu without any preference among themselves and at least equally with all other outstanding unsecured and unsubordinated obligations of the relevant Issuer, present and future, other than obligations, if any, that are mandatorily preferred by statute or by operation of law and (ii) the obligations of ENEL under the Guarantee constitute direct, unconditional and (subject to the provisions of Condition 4) unsecured and unsubordinated obligations of ENEL and rank at least equally with all other outstanding unsecured and unsubordinated obligations of ENEL, present and future, other than obligations, if any, that are mandatorily preferred by statute or by operation of law;
(n) that in relation to each Tranche of Notes for which any Dealer is named as a Stabilising Manager in the applicable Final Terms, it nor has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the relevant Issuer authorises such Dealer to make all appropriate disclosure in relation to stabilisation instead of the relevant Issuer, unless otherwise agreed between the relevant Issuer and the Dealer;
(o) that any translation prepared by either Obligor of the summary contained in the Offering Circular as required by Article 18 of the Prospectus Directive is accurate in all material respects;
(p) that no Obligor will use the proceeds from the sale of the Notes in a manner which could violate or result in a violation of Section 7 of the Exchange Act or any regulation promulgated thereunder, including, without limitation, Regulations G, T, U and X of the Board of Governors of the Federal Reserve System;
(q) that none of the Obligors, any of its affiliates, nor their affiliates and any persons (other than the relevant Dealer as to which no representation is made) acting on any of their behalf has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilisation in violation of applicable laws or manipulation of the price of any debt security of themany Obligor to facilitate the sale or resale of any Notes;
(r) that none of the Obligors, any of their affiliates and any persons acting on any of their behalf has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, Notes and each person (other than of the relevant Dealer as to which no representation is made) acting on behalf of any of them have foregoing persons has complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(s) that the Notes have not been and will not be registered under the Securities Act and have not been registered or qualified under any state securities or “Blue Sky” laws of the states of the United States and, where TEFRA accordingly, each Obligor acknowledges that the Notes may not be offered or sold within the United States or to or for the account or benefit of U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act (terms used in this paragraph have the meaning given to them by Regulation S);
(t) that none of the Obligors, any of their affiliates and any persons acting on any of their behalf has engaged or will engage in any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D is indicated under the Securities Act) in connection with any offer or sale of Notes in the applicable Final TermsUnited States;
(u) that, as of its Issue Date, no Note will be, and no securities of the same class (within the meaning of Rule 144A(d)(3)(i) under the Securities Act) as that Note will be, (i) listed on a national securities exchange in the United States which is registered under section 6 of the Exchange Act or (ii) quoted in any “automated inter-dealer quotation system” (as that term is used in the rules under the Exchange Act) in the United States;
(v) that the Notes and the Agreements conform in all material respects to the descriptions of them contained in the Offering Circular and it is not necessary in connection with the provisions Programme to qualify an indenture in respect of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1the Notes under the United States Trust Indenture Act of 1939;
(w) that the Notes will be offered, sold or resold by either Obligor in the United States pursuant to private transactions to qualified institutional buyers within the meaning of Rule 144A in transactions that will meet the eligibility requirements under Rule 144A;
(x) that neither Obligor is now, nor will it be as a result of the sale of any Notes, an “investment company”, or a company “controlled” by an “investment company” registered or required to be registered under the Investment Company Act (as such terms are used in the Investment Company Act); and
(y) that none of the Obligors, any of their affiliates and (2) any persons acting on any of their behalf has made or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C)will make offers or sales of any securities under circumstances that would require the registration of any of the Notes under the Securities Act.
4.2 With regard to each issue of Notes, the relevant Issuer and ENEL (if not the relevant Issuer) shall be deemed to repeat the representations, warranties and undertakings contained in subclause clause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer Obligors shall be deemed to repeat the representations, warranties and undertakings contained in subclause clause 4.1 on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 13.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations, warranties and undertakings set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, 10.1 The Company represents and warrants to and undertakes to with the Dealers and each of them as followsUnderwriter in the following terms:
(a) that:
(i) its most recently published audited consolidated financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed facts stated in the Base Prospectus, that there has been no change nor any development or event reasonably likely Recitals to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsthis Agreement are true and accurate in all material respects;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained or to be contained in the Base Announcement or the Prospectus Documents (including, in particular, the section headed “Reasons for and benefits of the Rights Issue and use of proceeds”) are and will at the date of issue thereof be true and accurate in all material respects and not misleading in any material respect and all statements expressions of intentionopinion, opinion or intention and expectation contained expressed therein (including, in particular, the Base Prospectus section headed “Reasons for and benefits of the Rights Issue and use of proceeds”) are honestly and reasonably held will be fair and have been made after due and careful consideration, ;
(c) there is will be no other fact or matter omitted from information not disclosed in the Base Prospectus which Documents (i) was the omission of which makes any statement therein misleading or which, in the context of the issue of the Rights Shares, might be material for disclosure therein or (ii) which is necessary information which is material to enable investors to make an investor and their investment advisers for making an informed info1med assessment of its the activities, assets and liabilities, financial position, management, profits and losses and prospects, prospects of the Company and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectRights Shares;
(d) the audited combined balance sheet of the Company as at 31 March 2022, and the audited combined profit and loss account of the Company for the financial year ended on such date (including the notes thereto) were prepared in accordance with the applicable laws and on a basis consistent with that adopted in preparing the audited accounts for the previous financial period in accordance with accounting principles, standards and practices generally accepted in Hong Kong so as to give (except to the extent (if any) disclosed therein) a true and fair view of the state of affairs of the Company as at the relevant dates and the profit or loss of the Company for the relevant financial periods. There has been no material adverse change in the financial or trading position of the Company or any of its subsidiaries since 31 March 2022;
(e) the returns for taxation purposes, which ought to have been made by or in respect of each of the companies in the Company in Hong Kong and any other part of the world, have been duly made and there are no circumstances known to any company in the Company or any of their respective directors, after making due and careful enquiry, which might be the occasion of any such dispute which is material and all such returns are in all material respects up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities;
(f) there are existing valid policies of insurance against all liabilities, risks and losses against which it is a company normal or prudent to insure in respect of all property and assets owned by and all businesses carried on by the companies in the Company and nothing has been done or has been omitted to be done whereby any of the said policies has or may become void or is likely to be avoided;
(g) the statements, forecasts, estimates and expressions of opinion contained in the Announcement and to be contained in the Prospectus have been and will at the respective dates of issue thereof be made after due and proper consideration, are and will at the respective dates of issue thereof be fair and honest and represent reasonable expectations based on facts known to the Company and/or the Directors or any of them;
(h) all information necessary for the purpose of, or in the course of preparation of, the Announcement and the Prospectus and the replies to the Verification Notes, or which ought reasonably to have been disclosed or made available by the Company or the Directors was so disclosed or made available to the Underwriter or its legal advisers (if any) fully, fairly and accurately and the replies to the Verification Notes (which will be prepared or approved by persons having appropriate knowledge and responsibility to enable them properly to provide such replies) given by the Company and the Directors will be true, accurate and complete in all material respects and will contain all material information and particulars with regard to the subject matter thereof;
(i) the Company is duly incorporated in and validly existing under the law laws of its place of incorporation, incorporation and has full power and authority to conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by itnow carried on;
(ej) that save as previously disclosed to the execution and delivery public in writing, there is no litigation, arbitration or other legal proceedings in progress or pending against any member of the Agreements have been duly authorised by it and constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject Group which if decided adversely to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery relevant member of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with Group) would have or result in a breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, or any indenture, trust deed, mortgage or other agreement or instrument to which it is a party or by which it or any of its properties are bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed in the Base Prospectus, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition financial position of the Group (financial or other) prospects, results or operations or general affairs viewed taken as a whole, ) or would materially and adversely affect its ability to perform its obligations under the Agreements, or Companyor which are otherwise is material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplated;
(i) that no consent, approval, authorisation, order, registration or qualification of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effectRights Issue;
(k) that, in relation to each issue of Notes, neither it the Company nor any of its affiliates (as defined in Rule 405 under the Securities Act)subsidiaries has entered into any contract or commitment of an unusual or onerous nature which, nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security context of the same class or series as the Notes being issuedRights Issue, might be material for disclosure;
(l) that it the Company and each of its subsidiaries has carried on its business in the ordinary and usual course and there has been no material adverse change in the financial or trading position of the Company or any of its subsidiaries which has not entered been fully and will not enter into any contractual agreement properly disclosed by the Company in the form of an announcement in accordance with respect to the distribution of any Notes except for this Agreement Listing Rules or any Subscription Agreement referred to hereinotherwise as required by the Listing Rules;
(m) thatno order has been made and no resolution has been passed for the winding up of, neither it nor or for a provisional liquidator to be appointed in respect of, the Company or any of its affiliatessubsidiaries, nor and no petition has been presented and no meeting has been convened for the purpose of winding up any persons of the same; no receiver has been appointed in respect of the Company or any of its subsidiaries or all or any of its assets; none of the Company or any of its subsidiaries is insolvent, or unable to pay its debts within the meaning of section 178 of the CWUMPO, or has stopped paying its debts as they fall due; and no unsatisfied judgment which is material to the condition of the Company is outstanding against the Company or any of its subsidiaries;
(n) the Prospectus Documents will contain all particulars and information required by, and will be in accordance with the CWUMPO, the rules and regulations of the Stock Exchange, the Takeovers Code and all other than the relevant Dealer as Ordinances and governmental regulations in Hong Kong and in Bermuda and shall not involve any breach of or default under any agreement, trust deed or instrument to which the Company is a party;
(o) no representation is made) acting on behalf material outstanding indebtedness or guarantee or indemnity of any liability of themthe Company or any of its subsidia1ies has become payable by reason of default by the Company or any of its subsidiaries and no event has occurred or is pending which with the lapse of time or the fulfillment of any condition or the giving of notice or the compliance with any other formality may result in any such indebtedness or guarantee or indemnity of any liability becoming so payable;
(p) the Company shall not from the date hereof until after the Latest Time for Acceptance issue any Shares or issue or grant any share options or other securities convertible into, exchangeable for or which carry rights to acquire Shares;
(q) the Company has power under its memorandum and bye-laws, has engaged taken all necessary corporate or will engage in any directed selling efforts other action, and no other consents, actions, authorisations or approvals are necessary to enable or authorise it:
(as defined in Rule 902(ci) under to allot and issue the Securities Act) with respect Rights Shares required to be provisionally allotted pursuant to the Notesterms of this Agreement in accordance with the Prospectus Documents without any sanction;
(ii) to deal with the Rights Shares attributable to the Non-Qualifying Shareholders as may be specified in the Prospectus Documents;
(iii) to enter into and perform its obligations under this Agreement and to make the Rights Issue;
(r) the Rights Shares, when fully paid, shall be free from all liens, charges, encumbrances and third party rights, interests or claims of any nature whatsoever; and
(ns) that it, any the obligations of its affiliates, the Company under this Agreement constitute legally valid and each person (other than the relevant Dealer as to which no representation is made) acting on behalf binding obligations of any of them have complied and will comply it enforceable in accordance with the offering restrictions requirement of Regulation S terms herein.
10.2 The Company hereby undertakes to use all reasonable endeavours not to cause or permit any Specified Event to occur prior to the Latest Time for Termination, and, where TEFRA D if this Agreement is indicated not rescinded pursuant to Clause 12, all such warranties, representations and undertakings as are contained in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer Clause 10.1 above shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 have been repeated as at the Agreement Date Latest Time for such Notes (Termination with reference to the facts and circumstances then subsisting.
10.3 If any agreement on such Agreement Date being deemed Specified Event shall occur or come to have been made on the basis ofknowledge of the Company prior to the Latest Time for Termination, and it shall as soon as reasonably practicable give notice to the Underwriter of the same.
10.4 The Underwriter hereby represents to the Company that it is beneficially interested in reliance on69,658,600 Shares, those representations, warranties and undertakings) and representing approximately 23.77% of the total issued share capital of the Company as at the Issue Date date of this Agreement. The Underwriter hereby further irrevocably undertakes to the Company that:
(1) it will subscribe and/or procure subscriptions for 43,536,625 Rights Shares which comprise the full amount of provisional entitlement in respect of the 69,658,600 Shares beneficially held by the Underwriter;
(2) it will not dispose of any of the 69,658,600 Shares currently owned by the Underwriter and such NotesShares will remain beneficially owned by the Underwriter up to and including the Record Date; and
(3) it will lodge the Application Form in respect of the Rights Shares referred to in Clause 10.4(1) accompanied by appropriate remittances which shall be honoured on first presentation and otherwise comply with the procedures for such acceptance and application as described in the Prospectus Documents prior to the Latest Time for Acceptance.
4.3 10.5 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in foregoing provisions of this clause shall Clause 10 will continue in 111 full force and effect notwithstanding the completion of the subscription and issue of any NotesRights Issue.
Appears in 1 contract
Samples: Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer RG hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its most recently published that the audited consolidated financial statements (of the audited accounts); and
(ii) its Group for the three most recently published unaudited interim consolidated recent financial statements, years were in each case prepared in accordance with the requirements of law and with accounting principles required for the purposes of the Prospectus Regulation consistently applied and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Group as at the date to which they were prepared (the “relevant date”) and (ii) its the consolidated results of operations, cash flows operations and changes in shareholders’ equity the financial position of the Group for the financial period year ended on the relevant date andand that there has been no material adverse change nor any development or event involving a prospective material adverse change of which RG is, or might reasonably be expected to be, aware in the consolidated condition (financial or otherwise) of the Group since the most recent relevant date, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct that the Prospectus contains all the information relating to RF, to it and complete (as to the term is understood pursuant Group and the Notes to article 958c be issued or guaranteed by it required by section 87A of the Swiss Code of Obligations) FSMA and have been prepared on a consistent basis in accordance otherwise complies with Swiss the Prospectus Rules and also contains all the information relating to RF, to it and to the Group and the Notes to be issued or guaranteed by it required by English law and, except as disclosed in and regulations and otherwise complies with such law and regulations to the Base Prospectus, since extent applicable to the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsProgramme;
(c) that the Base Prospectus contains all information with respect to itself it has been duly incorporated and is validly existing under English law (and the Notes laws of any other jurisdiction in which it carries on business) with full power and authority and legal capacity to be issued under this Agreement that is material own, lease and operate its properties and conduct its business and, in the context of its capacity as an Issuer, to issue the Notes to be issued under this Agreement, all statements of fact contained upon the terms and conditions set out in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its assets and liabilities, financial position, profits and losses and prospects, the rights attaching to the Notes and the reasons for Agreements and, in its capacity as Guarantor, to give the issuance and its impact on Guarantee in respect of the Issuer or (ii) the omission of which made or makes any statement therein misleading Notes issued by RF and, in any material respect;
(d) that it is a company duly incorporated and validly existing under the law of its place of incorporationeach case, and has full power and authority to conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Notes and the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(ed) that the issue of Notes and the execution and delivery of the Agreements by it, in its capacity as an Issuer, and the giving of the Guarantee, in its capacity as Guarantor, have been duly authorised by it and, in the case of Notes, upon due execution, issue and constitute delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements constitute, its legal, valid and legally binding obligations enforceable in accordance with their respective terms subject as specified in the most recent English legal opinion provided to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre the Dealers and similar laws of general applicability relating the Trustee pursuant to or affecting creditors’ rights and to general equity principlesthis Agreement;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements by it will not conflict with infringe any English law or regulation and are not contrary to the provisions of its memorandum and articles of association and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default is subsisting in relation to any outstanding Note issued or guaranteed (if applicable) by it and no event has occurred which might constitute (after an issue of such Notes) an Event of Default thereunder;
(g) that, save as described in the Prospectus or as otherwise disclosed in writing by it to the Base ProspectusDealers, there are no pending actionsaction or proceeding of or before any court or administrative tribunal has been commenced against any member of the Group or, suits or proceedings against or affecting itto the best of its knowledge and belief, is threatened, which (i) would restrain or affect the execution and delivery by each of it and RF of the Agreements to which it and RF are reasonably likely parties or the performance and compliance by each of it and RF of, and with, the obligations expressed to be determined adversely assumed by each of them respectively therein or the legality, validity or enforceability thereof, or (ii) which would be reasonably expected to it and succeed and, if its determined would individually or in the aggregate successful, to have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under position of the Agreements, or which are otherwise material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplatedGroup;
(ih) that no consentconsents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency or body authority in the United Kingdom is required and no other action or thing (including, without limitation. the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by it or RF, as the case may be, for or in connection with (i) the execution, issue and offering of the Notes under the Programme and compliance by it or RF, as the consummation case may be, with the terms of the other transactions contemplated any Notes issued by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes it under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it and RF, as the case may be, for or in connection with (i) the execution, issue and offering of Notes under the Programme, and compliance by it or RF, as the case may be, with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect effect;
(j) its obligations to pay the principal of and (ii) interest on the execution, issue Notes issued by it and offering its obligations under the Guarantee in respect of Notes under issued by RF are, or when incurred will be, its direct, unconditional and unsecured obligations ranking pari passu in all respects and rateably, without preference or priority by reason of date of issue, currency of payment or otherwise, with all its other unsecured and unsubordinated obligations (whether outstanding at the Programme and compliance by it with the terms of such Notes will, on date hereof or before the Issue Date of such Notes, have been obtained and will be in full force and effecthereafter);
(k) thatthat none of it, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates their behalf (as defined in Rule 405 under which for the Securities Actavoidance of doubt shall not include any Dealer), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; andNotes issued or guaranteed (if applicable) by it;
(nl) that it, any of its affiliates, affiliates and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf (which for the avoidance of doubt shall not include any Dealer) have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; with respect to the Notes issued or guaranteed (if applicable) by it; and, where TEFRA D
(m) that in relation to each Tranche of Notes issued or guaranteed (if applicable) by it; for which a Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of such Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
4.2 As at the date of this Agreement, RF hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) when prepared the audited non-consolidated financial statements of RF for the most recent financial year will be prepared in accordance with the requirements of law and with accounting principles required for the purposes of the Prospectus Regulation consistently applied and they will give a true and fair view of (i) the non-consolidated financial condition of RF as at the date to which they will be prepared (the “relevant date”) and (ii) the consolidated results of operations and changes in the financial position of RF for the financial year ended on the relevant date and that there has been no material adverse change nor any development or event involving a prospective material adverse change of which RF is, or might reasonably be expected to be, aware in the non-consolidated condition (financial or otherwise) of RF since its incorporation (in the case of the period prior to the preparation of such financial statements) or (in the case of the following period) since the most recent relevant date, except as disclosed in the Prospectus;
(b) that the Prospectus contains all the information relating to it and the Notes to be issued by it required by section 87A of the FSMA and otherwise complies with the Prospectus Rules and also contains all the information relating to it and the Notes to be issued by it required by English law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme;
(c) that it has been duly incorporated and is validly existing under English law (and the laws of any other jurisdiction in which it carries on business) with full power and authority and legal capacity to own, lease and operate its properties and conduct its business and to issue the Notes upon the terms and conditions set out in the Notes issued by it and the Agreements and execute and perform its obligations under the Notes issued by it and the Agreements to which it is a party;
(d) that the issue of Notes by it and the execution and delivery of the Agreements by it have been duly authorised by it and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements constitute, its legal, valid and binding obligations enforceable in accordance with their respective terms subject as specified in the most recent English legal opinion provided to the Dealers and the Trustee pursuant to this Agreement;
(e) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes and the performance of the terms of any Notes and the Agreements by it will not infringe any English law or regulation and are not contrary to the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1its memorandum and articles of association and will not result in any breach of the terms of, or constitute a default under, any instrument, agreement or order to which it is a party or by which it or its property is bound;
(f) that no Event of Default is subsisting in relation to any outstanding Note issued by it and no event has occurred which might constitute (after an issue of such Notes) an Event of Default thereunder;
(g) that, save as described in the Prospectus or as otherwise disclosed in writing by it to the Dealers, no action or proceeding of or before any court or administrative tribunal has been commenced against it or, to the best of its knowledge and belief, is threatened, which (i) would restrain or affect the execution and delivery by it of the Agreements to which it is a party or the performance and compliance by it of, and with, the obligations expressed to be assumed by it therein or the legality, validity or enforceability thereof, or (ii) which would be reasonably expected to succeed and, if successful, to have a material adverse effect on its financial position;
(h) that no consents, approvals, authorisations, orders, filings, registrations or qualifications of or with any court or governmental authority in the United Kingdom is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by it for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of any Notes issued by it under the Programme or (ii) the execution and delivery of, and compliance with the terms of, the Agreements;
(i) that all corporate approvals and authorisations required by it for or in connection with (i) the execution, issue and offering of Notes by it under the Programme and compliance by it with the terms of any Notes issued by it under the Programme and (2ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect;
(j) its obligations to pay the principal of and interest on the Notes issued by it are, or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(Cwhen incurred will be, its direct, unconditional and unsecured obligations ranking pari passu in all respects and rateably, without preference or priority by reason of date of issue, currency of payment or otherwise, with all its other unsecured and unsubordinated obligations (whether outstanding at the date hereof or hereafter);
(k) that none of it, its affiliates, and any persons acting on any of their behalf (which for the avoidance of doubt shall not include any Dealer), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes issued by it;
(l) that it, its affiliates and each person acting on any of their behalf (which for the avoidance of doubt shall not include any Dealer) have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act with respect to the Notes issued by it; and
(m) that in relation to each Tranche of Notes issued by it for which a Dealer is named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of such Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
4.2 4.3 With regard to each issue of Notes, the relevant Issuer and the Guarantor (if applicable) shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause clauses 4.1 and 4.2 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) provided always that each of the above representations, warranties and as at agreements shall be qualified by, and to the Issue Date extent of, any information disclosed in writing for the purpose of such Notesqualifications to, and acknowledged in writing by, the relevant Dealers or, as the case may be, the Dealers and the Arranger on or before the relevant Agreement Date.
4.3 The Issuer 4.4 RF and RG shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause clauses 4.1 and 4.2 on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 The 4.5 Except to the extent as may be acknowledged by the Dealers in clause 4.3, representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations, warranties and undertakings set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative, governmental or other proceedings the result of which is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since 31st December, 2006 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended;
(o) that in relation to each Tranche of Notes for which any Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer; and
(p) that any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, inaccurate or inconsistent when read with other parts of the provisions Base Prospectus and any translation of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and such summary prepared by or on behalf of the Issuer is accurate in all material respects.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer's annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the "COMMISSION") as it may be amended by Form 10-K/A (the "FORM 10-K"), and incorporated by reference in the Offering Circular, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case have been prepared in accordance conformity with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) United States generally accepted accounting principles applied on a consistent basis, and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may beOffering Circular, since the date of such latest audited annual financial statements neither the audited accountsIssuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(b) its most recently published statutory (parent only) financial that the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements are correct and complete (as made in the term is understood pursuant to article 958c Offering Circular, in the light of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law andcircumstances under which they were made, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ ' rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed 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 is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since December 31, 1997 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the "EXCHANGE FILED INFORMATION"). Each such report and statement filed by the Issuer and incorporated by reference in the Offering Circular, when so filed, contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an "INVESTMENT COMPANY" as defined in the United States Investment Company Act of 1940, as amended; and
(o) that in relation to each Tranche of Notes for which a Dealer is indicated named as a Stabilising Manager in the applicable Final TermsPricing Supplement, with it has not issued and will not issue, without the provisions prior consent of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and that Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statementsstatements of the Issuer, were in each case prepared in accordance with the requirements of law and with IFRS accounting standards to the Prospectus Regulation extent accepted and applied in Finland in accordance with the Finnish Credit Institutions Act and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, and that there has been no material adverse change nor or any development or event reasonably likely to involve involving a prospective material adverse change which is materially adverse to its in the consolidated condition (financial or other), prospects, results of operations, or general affairs, or that otherwise) of the Issuer, as the case may be, Issuer since the date of the audited accountsrelevant date;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all material information with respect to itself the Issuer, the Group and the Notes to be issued under this Agreement that is material in the context of the Notes or Covered Bonds to be issued under this Agreement, all (ii) the Base Prospectus does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the Group, the rights attaching to the Notes or Covered Bonds to be issued under this Agreement and the reasons for the issuance and its impact on the Issuer or Issuer, (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Base Prospectus contains all the information required by Finnish law and regulations (subject to compliance by the Dealers with clause 8) and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Regulation;
(d) that it is a company the Issuer and each of its Subsidiaries has been duly incorporated and is validly existing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the issue of Notes or Covered Bonds and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Notes or Covered Bonds, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principlesof creditors generally;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised or Covered Bonds and the performance of the terms of any Notes or Covered Bonds and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer is a party or by which the Issuer or its constitutive documentsproperty is bound;
(g) that no Event of Default or event which with the giving of notice or lapse of time or other condition might constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which might constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition might (after an issue of Notes) constitute such an Event of Default;
(h) that the Issuer (i) is not in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound (which breach is material in the context of the Programme or the issue of Notes or Covered Bonds) and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes or proceedings against Covered Bonds under the Programme or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually might have or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (iii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done done, by the Issuer for or in connection with (A) the execution, issue and offering of Notes or Covered Bonds under the Programme and compliance by the Issuer with the terms of any Notes or Covered Bonds issued under the Programme or (B) the consummation of execution and delivery of, and compliance with the other transactions contemplated by the Agreementsterms of, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes or Covered Bonds under the Programme and compliance by the Issuer with the terms of any Notes or Covered Bonds issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) thatthat each of the Issuer and its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are recorded as necessary to
(A) permit preparation of financial statements in conformity with accounting rules and standards generally applicable in its jurisdiction of incorporation and/or with IFRS and (B) maintain accountability for assets; and (ii) each of the Issuer and its consolidated subsidiaries (if any) has made and kept books, records and accounts which, in relation to each issue reasonable detail, accurately and fairly reflect the transactions and dispositions of Notes, assets of such entity and provide a sufficient basis for the preparation of the Issuer's consolidated financial statements in accordance with IFRS and neither it the Issuer nor any of its affiliates its/Subsidiaries has experienced any material difficulties with regard to (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person i) and (as such terms are defined in Regulation S under the Securities Act (Regulation S)ii) the Notes being issued or any security of the same class or series as the Notes being issuedabove;
(l) that it has not entered and will not enter into neither the Issuer nor any contractual agreement with respect of its Subsidiaries nor, to the distribution knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its Subsidiaries are currently (i) the subject of any Notes except for this Agreement Sanctions, (ii) conducting business with any person, entity or country which is the subject of any Subscription Agreement referred to hereinSanctions, or (iii) is located, organised or resident in a country or territory which is the subject of any Sanctions;
(m) that, that neither it the Issuer nor any of its Subsidiaries, nor, to the knowledge of the Issuer, any director, officer, agent, employee or other person associated with or acting on behalf of the Issuer or any of its Subsidiaries, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of any applicable anti-bribery or anti-corruption law or regulation enacted in any jurisdiction including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 or the UK Xxxxxxx Xxx 0000; or made, offered or promised to make, or authorised the payment or giving of any bribe, rebate, payoff, influence payment, facilitation payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable law or regulation;
(n) the operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements and money laundering statutes in Finland and of all jurisdictions in which the Issuer and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to Money Laundering Laws is pending and, to the best of the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated;
(o) all returns, reports or filings which ought to have been made by or in respect of the Issuer for taxation purposes have been made and to the best of the Issuer's knowledge all such returns are up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities and the Issuer is not aware of any present circumstances likely to give rise to any such material dispute. The Issuer reasonably believes that the provisions for income tax included in its financial statements have been calculated on a proper basis in respect of all accounting periods ended on or before the accounting reference date to which the financial statements relate for which the Issuer was then or might at any time thereafter become or have become liable. To date, the Issuer is not aware of any tax deficiency which has arisen or has been asserted against the Issuer that would be considered material in the context of the issue of the Notes or Covered Bonds;
(p) that it is not necessary under the laws of Finland that any Noteholder, Covered Bondholder, Dealer or Agent should be licensed, qualified or otherwise entitled to carry on business in Finland (i) to enable any of them to enforce their respective rights under the Notes or Covered Bonds or the Agreements or (ii) solely by reason of the execution, delivery or performance (other than in the case of performance of any “Investment service and activities” to the Issuer (as defined in MiFID) by any Dealer) of the Agreements or the Notes or Covered Bonds;
(q) that (i) all payments of principal, interest and other amounts in respect of the Notes or Covered Bonds made to holders of the Notes or Covered Bonds who are non-residents of Finland will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of Finland or any political subdivision or any authority thereof or therein having the power to tax and (ii) no stamp or other duty or similar tax is assessable or payable in, and no withholding or deduction for or on account of, any taxes, duties, assessments or governmental charges of whatever nature is required to be made by or within, Finland or other sub-division of or authority therein or thereof having power to tax, in each case in connection with the authorisation, execution or delivery of the Agreements or with the authorisation, execution, issue or delivery of the Notes or Covered Bonds or the performance of the obligations of the Issuer under the Agreements and the Notes or Covered Bonds;
(r) that all Senior Preferred Notes will, upon issue, constitute direct, unconditional, unsubordinated and unsecured obligations of the Issuer and rank pari passu without any preference among themselves and (save for certain obligations required to be preferred by law) at least equally with all other unsecured obligations of the Issuer, from time to time outstanding;
(s) that all Senior Non-Preferred Notes will, upon issue, constitute direct, unsubordinated and unsecured obligations of the Issuer and rank pari passu without any preference among themselves and otherwise as described in the Conditions;
(t) that all Subordinated Notes will, upon issue, constitute unsecured and subordinated (as described in the Conditions) obligations of the Issuer and rank pari passu without any preference among themselves;
(u) that all Covered Bonds will, upon issue, constitute direct, unconditional and unsubordinated obligations of the Issuer and rank pari passu among themselves and will be covered in accordance with the CBA and will rank pari passu with all other obligations of the Issuer in respect of mortgage-backed notes in accordance with the CBA;
(v) that none of the Issuer, its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; andNotes or Covered Bonds;
(nw) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; and
(x) that neither the Issuer nor its affiliates will during the restricted period, where TEFRA D is indicated in except to the applicable Final Terms, with the provisions of extent permitted under U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at 8.1 In consideration of the date of Joint Placing Agents entering into this AgreementAgreement and agreeing to perform their respective obligations hereunder, the Issuer represents, Company hereby warrants and undertakes to the Dealers and each of them the Joint Placing Agents as follows:
(a) that:
(i) its most recently published audited consolidated financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, 8.1.1 all statements of fact contained in the Base Prospectus Announcements (including but not limited to the disclosure on the use of proceeds) are true and accurate in all material respects and all statements of opinion, intention, expectation or estimates of the Directors in relation to the Company and/or any other member(s) of the Group contained therein (if any) are truly and honestly held and have been made on reasonable grounds after due and careful consideration, and the Announcements do not include an untrue statement of a material fact or omit to state a fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect;
8.1.2 save for the matters set out in the Announcement, the Company is not in possession of any non-public information relating to the Company, any other member of the Group or their respective businesses the release of which could materially affect the trading price of the Shares and there is not in existence any material or information relating to the Company which will be required to be but has not been disclosed by the Company under the Listing Rules or the Exchange Act. Without prejudice to the generality of the foregoing, there is no material information (including, without limitation, any information regarding any material adverse change or prospective material adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Group) that is not described in the Company’s most recent annual report or subsequent public information releases (the “Company Information”) which information is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Group; the Company Information does not include any untrue statement of a material fact or omit to state any fact necessary in order to make the statements therein not misleading in any material respect;
8.1.3 all information (whether oral, written, electronic or in any other form) supplied by or on behalf of the Company, any other member of the Group or any of their respective officers, directors, employees or advisers, for the purpose of or in connection with the Placing or the Company and all publicly available information and records of the Company (including information contained in annual reports, statutory filings and registrations) is and was, when supplied or published, true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained respect;
8.1.4 save as disclosed in the Base Prospectus are honestly and reasonably held and have been made after due and careful considerationCompany Information, there is no claim, litigation, arbitration, prosecution or other fact legal proceedings or matter omitted from investigation or enquiry in progress or pending or threatened against any member of the Base Prospectus Group or any of its properties or (as far as the Company is aware) the Company’s executive director nor, so far as the Company is aware, is there any claim or any facts or circumstances of a material nature which would give rise to a claim against any member of the Group or any of its properties or the Company’s executive director, which in any such case would have or have had a material adverse effect on the condition, financial, trading or otherwise, or the earnings, business affairs or business prospects (iwhether or not arising in the ordinary course of business) was of the Company and the Group as a whole or is necessary information which is material for disclosure in the context of the Placing;
8.1.5 save as disclosed in the Company Information, there has been no material adverse change, or any development involving or reasonably likely to an investor and their investment advisers for making an informed assessment of its assets and liabilitiesinvolve a prospective material adverse change, in the condition, financial positionor otherwise, profits and losses and prospectsor the earnings, net assets, business affairs or business prospects (whether or not arising in the rights attaching to ordinary course of business) of the Notes and Company or the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectGroup as a whole since 31 December 2009;
(d) that it 8.1.6 each member of the Group is a company duly incorporated and validly existing under the law laws of the place of its place incorporation and each member of incorporation, the Group has power to own its assets and has full power and authority to conduct its business as described in the Base Prospectus manner presently conducted and there has been no petition filed, order made or effective resolution passed for the liquidation or winding up of any member of the Group;
8.1.7 the Placing Shares shall be allotted, issued and fully paid and rank pari passu in all respects with the other Shares then in issue, free from all pledges, liens, charges, mortgages, security interests, adverse claims and encumbrances, and together with all rights attaching to execute them as at the date hereof, including the right to receive all dividends declared, made or paid on or after the date hereof;
8.1.8 each member of the Group has obtained such authorisations and licences (if any) as are required under the provisions of any applicable law in connection with the operation of its business and there is no breach by any member of the Group of the provisions of any ordinance, statute or regulation governing such authorisations or licences nor is there any reason why any such authorisation or licence should be withdrawn or cancelled;
8.1.9 the Company is not in breach of any rules, regulations or requirements of the Stock Exchange and, in particular, the Company has complied at all times with the disclosure requirements under the Listing Rules, save for any breach or non-compliance which is not material in the context of the Placing;
8.1.10 save as disclosed in the Company Information, there is no order, decree or judgement of any court or governmental agency or regulatory body outstanding or anticipated against any member of the Group which may have or has had a material adverse effect upon the condition, financial or otherwise or the earnings, business affairs or business prospects (whether or not arising in the ordinary course of business) of the Group (taken as a whole) or which is material in the context of the Placing;
8.1.11 no material outstanding indebtedness of any member of the Group has become payable or repayable by reason of any default of any member of the Group and no event has occurred or is impending which may result in such indebtedness becoming payable or repayable prior to its maturity date, in a demand being made for such indebtedness to be paid or repaid or in any step being taken to enforce any security for any such indebtedness of any member of the Group;
8.1.12 save as disclosed in the Company Information, no member of the Group is a party to or under any obligation which is material and which is of an unusual or unduly onerous nature; no member of the Group is in breach of or in default of its constitutional documents or any contract or agreement which may have or has had a material adverse effect upon the condition, financial or otherwise or the earnings, business affairs or business prospects (whether or not arising in the ordinary course of business) of the Company or of the Group (taken as a whole) or which is material in the context of the Placing; neither this Agreement nor the Placing will constitute or give rise to a breach of or default under the constitutional documents or any agreement or other arrangement to which any member of the Group is party or give rise to any rights of any third party in respect of any assets of the Company or of the Group;
8.1.13 the copy of the audited consolidated accounts for the Group for the financial year ended on 31 December 2009 which has been provided to the Joint Placing Agents prior to the execution of this Agreement:
(i) have been prepared on a recognised and consistent basis and in accordance with generally accepted accounting principles, standards and practice in the United States;
(ii) comply with the Companies Ordinance and all other applicable ordinances, statutes and regulations and show a true and fair view of the state of affairs of the Group and of its results for the period in question;
(iii) are not affected by any unusual or non-recurring items and do not include transactions not normally undertaken by the relevant member of the Group (save as disclosed in the said relevant accounts); and
(iv) make adequate provision for all Taxation whether in Hong Kong or any other part of the world in respect of all accounting periods ended on or before the respective date for which the relevant member of the Group was then or might at any time thereafter become or have been liable;
8.1.14 the Company has power under its constitutional documents to permit its entry into, and perform its obligations under under, this Agreement in the Agreements manner set out herein and it is lawfully qualified to do business in those jurisdictions in which business is conducted by it;
this Agreement (eand its performance) that the execution and delivery of the Agreements have has been duly authorised by it (such authorisation remaining in full force and constitute its valid effect) and executed by, and constitutes legally binding and enforceable obligations enforceable of the Company in accordance with their respective terms its terms, subject to the laws relating to bankruptcy, insolvency, fraudulent transferliquidation, possessory liens, rights of set off, reorganisation, moratoriumamalgamation, en désastre merger, consolidation, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors, and similar laws general principles of general applicability relating equity; there is no authorisation, consent, approval, licence or notification required for the purposes of or as a consequence of the Placing either from governmental, regulatory or other public bodies (including, without limitation, the Stock Exchange except for the approval for the listing of and permission to deal in the Placing Shares by the Stock Exchange) or affecting creditors’ rights and authorities or courts or from any third party pursuant to general equity principlesany contractual or other arrangement to which the Company or any other member of the Group is a party;
(f) that Notes issued 8.1.15 the compliance by it when duly authorised, executed, authenticated, issued and delivered in accordance the Company with all of the Agency provisions of this Agreement, will constitute its valid the allotment and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery issue of the Agreements, Placing Shares as well as the issue, offering and distribution of Notes when duly authorised and the performance consummation of the terms of any Notes and the Agreements transactions herein contemplated will not conflict with or result in a breach of or violation of, or result in any third party consent being required under, any of the terms or provisions of, or constitute a default under, its constitutive documents, or of any indenture, trust deedmortgage, mortgage deed of trust, loan agreement or other agreement or instrument instrument, decree, regulation or law to or by which it any member of the Group is a party or by to which it any of the property or assets of any member of the Group is subject, or any of its properties are boundstatute or any order, rule or infringe any existing applicable law, rule, regulation, judgmentincluding, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed in the Base Prospectus, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; andwithout limitation, to the best extent applicable, the Companies Ordinance, the Listing Rules, the Takeovers Code or any judgment, decree or order of its knowledge, no such actions, suits or proceedings are threatened or contemplated;
(i) that no consent, approval, authorisation, order, registration or qualification of or with any court or governmental agency or body is required having jurisdiction over any member of the Group or the property or assets of any member of the Group;
8.1.16 except for the employee share options and no other action or thing is required restricted share units of the Company in issue as at the date of this Agreement and the Shares and warrants to be takenissued to TSMC under the TSMC Share and Warrant Agreement, fulfilled or done for the issue no unissued share capital of any member of the Notes Group is under the Programme any option or the consummation agreed conditionally or unconditionally to be put under any option and, other than Datang and TSMC, no person has an outstanding warrant, pre-emptive right or any other right of any description to require shares to be allotted or issued by any member of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the AgreementsGroup;
(j) that all corporate approvals 8.1.17 the Company has read and authorisations required by it for or in connection with (i) understood the execution Professional Investor Treatment Notice and delivery of, acknowledges and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation agrees to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties waivers and undertakings consents contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on Professional Investor Treatment Notice, in which the basis ofexpressions “you” or “your” shall mean “the Company”, and in reliance on, those representations, warranties and undertakings) and as at “us” or “our” shall mean the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.Joint Placing Agents;
Appears in 1 contract
Samples: Placing Agreement (Semiconductor Manufacturing International Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated and non-consolidated financial statements, statements of the Issuer. were in each case prepared in accordance with the requirements of the Prospectus Regulation and that that, in each case, they present fairly (i) its give a true and fair view of the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise), results of operations, prospects or business affairs of the Issuer since the date of the last audited accounts, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all material information with respect to itself the Issuer and the Notes to be issued under this Agreement that is material in the context of the Notes Covered Bonds, to be issued under this Agreement, all (ii) the Base Prospectus does not contain an untrue statement of a material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the rights attaching to the Notes Covered Bonds to be issued under this Agreement and the reasons for the issuance and its impact on the Issuer or (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made by or on behalf of the Issuer to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Base Prospectus contains all the information (if any) required by Article 6 of the Prospectus Regulation and also contains all the information required by Icelandic law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Regulation;
(d) that it is a company the Issuer and each of its consolidated Subsidiaries has been duly incorporated and is validly existing in good standing under the law laws of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the Issuer (i) has, or has made an application to, obtain all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Base Prospectus and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines;
(f) that the issue of Covered Bonds and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Covered Bonds, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised Covered Bonds and the performance of the terms of any Notes Covered Bonds and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer is a party or by which the Issuer or its constitutive documentsproperty is bound;
(h) that the Issuer (i) is not in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Covered Bonds under the Programme or proceedings against which might have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (A) the execution, issue and offering of Covered Bonds under the Notes Programme and compliance by the Issuer with the terms of any Covered Bonds issued under the Programme or (B) the consummation of execution and delivery of, and compliance with the other transactions contemplated by the Agreementsterms of, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Covered Bonds under the Programme and compliance by the Issuer with the terms of any Covered Bonds issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) thatthat each of the Issuer and its consolidated Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorisations; (ii) transactions are recorded as necessary to (A) permit preparation of financial statements in conformity with accounting rules and standards generally applicable in its jurisdiction of incorporation and/or with IFRS and (B) maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorisation; and (iv) each of the Issuer and its consolidated Subsidiaries (if any) has made and kept books, records and accounts which, in relation to each issue reasonable detail, accurately and fairly reflect the transactions and dispositions of Notes, assets of such entity and provide a sufficient basis for the preparation of the Issuer's consolidated financial statements in accordance with IFRS and neither it the Issuer nor any of its affiliates Subsidiaries has experienced any material difficulties with regard to (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior i) to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)iv) the Notes being issued or any security of the same class or series as the Notes being issuedabove;
(l) that it has not entered all returns, reports or filings which ought to have been made by or in respect of the Issuer for taxation purposes have been made and will not enter into any contractual agreement with respect to the distribution best of the Issuer's knowledge all such returns are up to date, correct and on a proper basis and are not the subject of any Notes except material dispute with the relevant revenue or other appropriate authorities and the Issuer is not aware of any present circumstances likely to give rise to any such material dispute. The Issuer reasonably believes that the provisions for this Agreement income tax included in its financial statements have been calculated on a proper basis in respect of all accounting periods ended on or before the accounting reference date to which the financial statements relate for which the Issuer was then or might at any Subscription Agreement referred to hereintime thereafter become or have become liable. To date, the Issuer is not aware of any tax deficiency which has arisen or has been asserted against the Issuer that would be considered material in the context of the issue of the Covered Bonds;
(m) thatthat it is not necessary under the laws of Iceland that any Covered Bondholder, neither it nor Dealer or Agent should be licensed, qualified or otherwise entitled to carry on business in Iceland (i) to enable any of them to enforce their respective rights under the Covered Bonds or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Covered Bonds;
(n) that the Covered Bonds will, upon issue, be direct and unsubordinated obligations of the Issuer and rank pari passu among themselves and with all other outstanding obligations of the Issuer as described in the Base Prospectus;
(o) that the Covered Bonds will, upon issue, be direct and unsubordinated obligations of the Issuer and rank pari passu among themselves and with all other outstanding obligations of the Issuer that have been provided with priority of claim equivalent to that of Covered Bonds issued by the Issuer in accordance with the Icelandic Covered Bond Act or have been converted into Covered Bonds;
(p) that in relation to each Tranche of Covered Bonds for which any Dealer is named as a Stabilisation Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Covered Bonds unless the announcement adequately discloses that stabilisation action may take place in relation to the Covered Bonds to be issued and the Issuer authorises such Dealer to make all appropriate disclosure in relation to stabilisation instead of the Issuer;
(q) that none of the Issuer, its affiliates, nor any persons acting on any of their behalf, has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilisation in violation of applicable laws or manipulation of the price of any debt security of the Issuer to facilitate the sale or resale of any Covered Bonds;
(r) that the Issuer is a foreign issuer (as defined in Rule 902(e) under the Securities Act) and none of the Issuer, its affiliates, nor any persons acting on any of their behalf, (other than the relevant Dealer Dealers, as to which the Issuer makes no representation is maderepresentations) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; andCovered Bonds and each of the foregoing persons has complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(ns) that itthe Covered Bonds have not been and will not be registered under the Securities Act and have not been registered or qualified under any state securities or "Blue Sky" laws of the states of the United States and, accordingly, the Issuer acknowledges that the may not be offered or sold within the United States or to or for the account or benefit of U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act (terms used in this paragraph have the meaning given to them by Regulation S);
(t) that none of the Issuer, its affiliates, nor any persons (other than the Dealers) acting on any of their behalf, has engaged or will engage in any directed selling efforts (as defined in Regulation S under the Securities Act) with respect to the Covered Bonds;
(u) that none of the Issuer, its affiliates, nor any persons acting on any of their behalf has made or will make offers or sales of any securities under circumstances that would require the registration of any of the Covered Bonds under the Securities Act;
(v) that the Issuer, its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S andunder the Securities Act;
(w) that neither the Issuer nor its affiliates will, where TEFRA D is indicated in except to the applicable Final Terms, with the provisions of U.S. Treasextent permitted under X.X. Xxxxx. Reg. § Section 1.163-5(c)(2)(i)(D)(15(c)(2)(i)(D), permit offers or sales of Covered Bonds to be made in the United States or its possessions or to United States persons, provided however, that the Issuer makes no such representation or warranty in respect of any activity undertaken by the Dealers or their affiliates in respect of the Covered Bonds. Terms used in this paragraph have the meanings given to them by the U.S. Internal Revenue Code of 1986 and the Treasury regulations promulgated thereunder;
(x) that neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its Subsidiaries are currently the subject of any Sanctions or conducting business with any person, entity or country which is the subject of any Sanctions;
(y) that to the best of the Issuer’s knowledge and belief, no actions or investigations by any governmental or regulatory agency are ongoing or threatened against the Issuer or its Subsidiaries, or any of their directors, officers, employees, subcontractors or any person acting on their behalf in relation to a breach of applicable anti-bribery or anti-corruption provisions in any relevant jurisdiction;
(z) the operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements and money laundering statutes in the Iceland and of all jurisdictions in which the Issuer and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to Money Laundering Laws is pending and, to the best of the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated;
(2aa) the Issuer represents and warrants to the Managers that the Statutory Test and the Asset Coverage Test (as defined in the Deed of Covenant) will not be breached as a result of the issue of the Covered Bonds;
(bb) the Issuer and its Subsidiaries have instituted and continue to maintain policies and procedures designed to detect money laundering and to promote and achieve and enforce compliance with Money Laundering Laws; and
(cc) the Issuer will not, and will ensure that all of its Subsidiaries, and their respective officers, directors and employees, will not directly or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C)indirectly use the transaction proceeds for any purpose that would breach Money Laundering Laws.
4.2 With regard to each issue of NotesCovered Bonds, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause Clause 4.1 as at the Agreement Date for such Notes Covered Bonds (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such NotesCovered Bonds.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause Clause 4.1 on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with Clause 12.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.contain
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, 10.1 The Company represents and warrants to and undertakes to with the Dealers and each of them as followsUnderwriter in the following terms:
(a) that:
(i) its most recently published audited consolidated financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed facts stated in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsRecitals are true and accurate in all material respects;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained or to be contained in the Base Announcement or in the Prospectus Documents are and will at the date of issue thereof be true and accurate in all material respects and not misleading in any material respect and all statements expressions of intentionopinion, opinion or intention and expectation contained in the Base Prospectus expressed therein are honestly and reasonably held will be fair and have been made after due and careful consideration;
(c) there will be no information not disclosed in the Prospectus Documents (a) the omission of which makes any statement therein misleading or which, there is no other fact in the context of the issue of the Rights Shares, might be material for disclosure therein or matter omitted from the Base Prospectus (b) which (i) was or is necessary information which is material to an investor and their investment advisers for making enable investors to make an informed assessment of its the activities, assets and liabilities, financial position, management, profits and losses and prospects, prospects of the Company and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectRights Shares;
(d) the audited consolidated balance sheet of the Group as at the Audited Accounts Date, the audited consolidated profit and loss account of the Group for the financial year ended on such date (including the notes thereto) were prepared in accordance with the applicable law and on a basis consistent with that it adopted in preparing the audited accounts for the previous two financial years in accordance with accounting principles, standards and practices generally accepted in Hong Kong so as to give (except to the extent (if any) disclosed therein) a true and fair view of the state of affairs of the Group as at the relevant dates and the profit or loss of the Group for the relevant financial periods. There has been no material adverse change in the financial or trading position of the Group since the Audited Accounts Date;
(e) the returns for taxation purposes, which ought to have been made by or in respect of the companies in the Group in Hong Kong and any other part of the world, have been duly made and there are no circumstances known to any company in the Group or any of their respective directors, after making due and careful enquiry, which might be the occasion of any dispute with the relevant revenue or other appropriate authorities which is material adverse to the Group and all such returns are in all material respects up to date, correct and on a company proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities;
(f) all information necessary for the purpose of, or in the course of preparation of, the Announcement and the Prospectus, or which ought reasonably to have been disclosed or made available by the Company or the Directors was so disclosed or made available to the Underwriter or its legal advisers fully, fairly and accurately;
(g) each of the companies in the Group is duly incorporated in and validly existing under the law laws of its place of incorporation, incorporation and has full power and authority to conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by it;
(e) that the execution and delivery of the Agreements have been duly authorised by it and constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, or any indenture, trust deed, mortgage or other agreement or instrument to which it is a party or by which it or any of its properties are bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its propertiesnow carried on;
(h) that except as disclosed neither the Company nor any of its subsidiaries is engaged in any litigation, arbitration, prosecution or other legal proceeding of material importance nor is there any such proceeding pending or threatened against the Base ProspectusCompany or any of its subsidiaries, nor is there are no pending actions, suits any claim or proceedings against or affecting it, which are reasonably fact likely to be determined adversely give rise to it and if its determined would individually any claim which in any such case may have or in the aggregate have has had a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed position of the Company and its subsidiaries taken as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, whole or which are otherwise may have or has had a material adverse effect in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplatedRights Issue;
(i) that the Company and its subsidiaries has carried on its business in the ordinary and usual course and there has been no consent, approval, authorisation, order, registration material adverse change in the financial or qualification of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue trading position of the Notes under the Programme Company or the consummation any of the other transactions contemplated its subsidiaries which has not been fully and properly disclosed by the Agreements, except those which have already been obtained Company in the form of an announcement in accordance with the Listing Rules or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated otherwise as required by the AgreementsListing Rules;
(j) that all corporate approvals no order has been made and authorisations required by it no resolution has been passed for or in connection with (i) the execution and delivery winding up of, and compliance with the terms or for a provisional liquidator to be appointed in respect of, the Agreements have Company or any of its subsidiaries, and no petition has been obtained presented and are no meeting has been convened for the purpose of winding up any of the same; no receiver has been appointed in full force respect of the Company or any of its subsidiaries or all or any of its assets; none of the Company or any of its subsidiaries is insolvent, or unable to pay its debts within the meaning of section 178 of the Companies (Winding Up and effect Miscellaneous Provisions) Ordinance, or has stopped paying its debts as they fall due; and (ii) no unsatisfied judgment which is material adverse to the execution, issue and offering condition of Notes under the Programme and compliance by it with Company is outstanding against the terms Company or any of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effectits subsidiaries;
(k) thatthe Prospectus Documents will contain all particulars and information required by, and will be in relation to each issue of Notesaccordance with the Companies (Winding Up and Miscellaneous Provisions) Ordinance, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act)Listing Rules, nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security rules and regulations of the same class Stock Exchange and all other relevant statutory provisions and governmental regulations in Hong Kong and Bermuda and shall not involve any breach of or series as default under any agreement, trust deed or instrument to which any member of the Notes being issuedGroup is a party;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution no material outstanding indebtedness or guarantee or indemnity of any Notes except for this Agreement liability of the Company or any Subscription Agreement referred to hereinof its subsidiaries has become payable by reason of default by the Company or any of its subsidiaries and no event has occurred or is pending which with the lapse of time or the fulfillment of any condition or the giving of notice or the compliance with any other formality may result in any such indebtedness or guarantee or indemnity of any liability becoming so payable;
(m) thatthe Company shall not from the date hereof until after the Latest Time for Acceptance issue any Shares or issue or grant any share options or other securities convertible into, neither exchangeable for or which carry rights to acquire Shares;
(n) on the date of issue of the Rights Shares, the Company will have the power under its bye-laws, will have taken all necessary corporate or other action to enable it nor any of its affiliatesto, nor any persons (and no other consents, actions, authorisations or approvals are necessary to enable or authorise it other than the relevant Dealer as obtaining the consents and approvals referred to which no representation is madein Clauses 2.1;
(o) acting on behalf of to issue and allot the Rights Shares in accordance with the Prospectus Documents without any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notessanction; and
(ni) that itto issue and allot the Rights Shares in accordance with the Prospectus Documents without any sanction; and/or
(ii) to enter into and perform its obligations under this Agreement and to make the Rights Issue;
(p) the Rights Shares, any of its affiliateswhen allotted, issued and each person (other than the relevant Dealer as to which no representation is made) acting on behalf fully-paid, will be issued free from all liens, charges, encumbrances and third party rights, interests or claims of any of them have complied nature whatsoever and will comply rank pari passu in all respects among themselves and with the offering restrictions requirement Shares then in issue on the date of Regulation S allotment and issue of the Rights Shares; and, where TEFRA D is indicated
(q) the obligations of the Company under this Agreement constitute legally valid and binding obligations of the Company enforceable in the applicable Final Terms, accordance with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C)terms herein.
4.2 With regard 10.2 The Company undertakes to each issue use all reasonable endeavours not to cause or permit any Specified Event to occur prior to the Latest Time for Termination. Each of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings undertaking contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer Clause 10.1 shall be deemed construed separately and shall not be limited or restricted by reference to repeat or inference from the terms of any other of the representations, warranties and undertaking or any other terms of this Agreement. If this Agreement is not rescinded pursuant to Clause 11, all such warranties, representations and undertakings as are contained in subclause 4.1 on each date on which Clause 10.1 above shall be deemed to have been repeated as at the Base Prospectus is revised, supplemented or amendedLatest Time for Termination with reference to the facts and circumstances then subsisting.
4.4 10.3 If any Specified Event shall occur or come to the knowledge of the Company prior to the Latest Time for Termination, it shall as soon as practicable give notice to the Underwriter of the same.
10.4 The representations, warranties and undertakings contained in foregoing provisions of this clause shall Clause 10 will continue in full force and effect notwithstanding the completion of the subscription and issue of any NotesRights Issue.
Appears in 1 contract
Samples: Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statementsstatements of the Issuer, were in each case prepared in accordance with the requirements of law and with IFRS accounting standards to the Prospectus Regulation extent accepted and applied in Finland in accordance with the Credit Institutions Act and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, and that there has been no material adverse change nor or any development or event reasonably likely to involve involving a prospective material adverse change which is materially adverse to its in the consolidated condition (financial or other), prospects, results of operations, or general affairs, or that otherwise) of the Issuer, as the case may be, Issuer since the date of the audited accountsrelevant date;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all material information with respect to itself the Issuer, the Group and the Notes to be issued under this Agreement that is material in the context of the Notes or Covered Bonds to be issued under this Agreement, all (ii) the Base Prospectus does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the Group, the rights attaching to the Notes or Covered Bonds to be issued under this Agreement and the reasons for the issuance and its impact on the Issuer or Issuer, (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Base Prospectus contains all the information required by Finnish law and regulations (subject to compliance by the Dealers with clause 8) and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Regulation;
(d) that it is a company the Issuer and each of its Subsidiaries has been duly incorporated and is validly existing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the issue of Notes or Covered Bonds and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Notes or Covered Bonds, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principlesof creditors generally;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised or Covered Bonds and the performance of the terms of any Notes or Covered Bonds and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer is a party or by which the Issuer or its constitutive documentsproperty is bound;
(g) that no Event of Default or event which with the giving of notice or lapse of time or other condition might constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which might constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition might (after an issue of Notes) constitute such an Event of Default;
(h) that the Issuer (i) is not in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound (which breach is material in the context of the Programme or the issue of Notes or Covered Bonds) and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes or proceedings against Covered Bonds under the Programme or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually might have or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(i) that no consent(i) all required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done done, by the Issuer for or in connection with (A) the execution, issue and offering of Notes or Covered Bonds under the Programme and compliance by the Issuer with the terms of any Notes or Covered Bonds issued under the Programme or (B) the consummation of execution and delivery of, and compliance with the other transactions contemplated by the Agreementsterms of, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes or Covered Bonds under the Programme and compliance by the Issuer with the terms of any Notes or Covered Bonds issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) thatthat each of the Issuer and its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are recorded as necessary to
(A) permit preparation of financial statements in conformity with accounting rules and standards generally applicable in its jurisdiction of incorporation and/or with IFRS and (B) maintain accountability for assets; and (ii) each of the Issuer and its consolidated subsidiaries (if any) has made and kept books, records and accounts which, in relation to each issue reasonable detail, accurately and fairly reflect the transactions and dispositions of Notes, assets of such entity and provide a sufficient basis for the preparation of the Issuer's consolidated financial statements in accordance with IFRS and neither it the Issuer nor any of its affiliates Subsidiaries has experienced any material difficulties with regard to (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person i) and (as such terms are defined in Regulation S under the Securities Act (Regulation S)ii) the Notes being issued or any security of the same class or series as the Notes being issuedabove;
(l) that it has not entered and will not enter into neither the Issuer nor any contractual agreement with respect of its Subsidiaries nor, to the distribution knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its Subsidiaries are currently (i) the subject of any Notes except for this Agreement Sanctions, (ii) conducting business with any person, entity or country which is the subject of any Subscription Agreement referred to hereinSanctions, or (iii) is located, organised or resident in a country or territory which is the subject of any Sanctions;
(m) that, that neither it the Issuer nor any of its Subsidiaries, nor, to the knowledge of the Issuer, any director, officer, agent, employee or other person associated with or acting on behalf of the Issuer or any of its Subsidiaries, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of any applicable anti-bribery or anti-corruption law or regulation enacted in any jurisdiction including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 or the UK Xxxxxxx Xxx 0000; or made, offered or promised to make, or authorised the payment or giving of any bribe, rebate, payoff, influence payment, facilitation payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable law or regulation;
(n) the operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements and money laundering statutes in Finland and of all jurisdictions in which the Issuer and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to Money Laundering Laws is pending and, to the best of the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated;
(o) all returns, reports or filings which ought to have been made by or in respect of the Issuer for taxation purposes have been made and to the best of the Issuer's knowledge all such returns are up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities and the Issuer is not aware of any present circumstances likely to give rise to any such material dispute. The Issuer reasonably believes that the provisions for income tax included in its financial statements have been calculated on a proper basis in respect of all accounting periods ended on or before the accounting reference date to which the financial statements relate for which the Issuer was then or might at any time thereafter become or have become liable. To date, the Issuer is not aware of any tax deficiency which has arisen or has been asserted against the Issuer that would be considered material in the context of the issue of the Notes or Covered Bonds;
(p) that it is not necessary under the laws of Finland that any Noteholder, Covered Bondholder, Dealer or Agent should be licensed, qualified or otherwise entitled to carry on business in Finland (i) to enable any of them to enforce their respective rights under the Notes or Covered Bonds or the Agreements or (ii) solely by reason of the execution, delivery or performance (other than in the case of performance of any “Investment service and activities” to the Issuer (as defined in MiFID) by any Dealer) of the Agreements or the Notes or Covered Bonds;
(q) that (i) all payments of principal, interest and other amounts in respect of the Notes or Covered Bonds made to holders of the Notes or Covered Bonds who are non-residents of Finland will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of Finland or any political subdivision or any authority thereof or therein having the power to tax and (ii) no stamp or other duty or similar tax is assessable or payable in, and no withholding or deduction for or on account of, any taxes, duties, assessments or governmental charges of whatever nature is required to be made by or within, Finland or other sub-division of or authority therein or thereof having power to tax, in each case in connection with the authorisation, execution or delivery of the Agreements or with the authorisation, execution, issue or delivery of the Notes or Covered Bonds or the performance of the obligations of the Issuer under the Agreements and the Notes or Covered Bonds;
(r) that all Senior Preferred Notes will, upon issue, constitute direct, unconditional, unsubordinated and unsecured obligations of the Issuer and rank pari passu without any preference among themselves and (save for certain obligations required to be preferred by law) at least equally with all other unsecured obligations of the Issuer, from time to time outstanding;
(s) that all Senior Non-Preferred Notes will, upon issue, constitute direct, unsubordinated and unsecured obligations of the Issuer and rank pari passu without any preference among themselves and otherwise as described in the Conditions;
(t) that all Subordinated Notes will, upon issue, constitute unsecured and subordinated (as described in the Conditions) obligations of the Issuer and rank pari passu without any preference among themselves;
(u) that all Covered Bonds will, upon issue, constitute direct, unconditional and unsubordinated obligations of the Issuer and rank pari passu among themselves and will be covered in accordance with the CBA and will rank pari passu with all other obligations of the Issuer in respect of mortgage-backed Covered Bonds in accordance with the CBA;
(v) that none of the Issuer, its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; andNotes or Covered Bonds;
(nw) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; and
(x) that neither the Issuer nor its affiliates will during the restricted period, where TEFRA D is indicated in except to the applicable Final Terms, with the provisions of extent permitted under U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative, governmental or other proceedings the result of which is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since 31st December, 2008 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended;
(o) that in relation to each Tranche of Notes for which any Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer; and
(p) that any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, inaccurate or inconsistent when read with other parts of the provisions Base Prospectus and any translation of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and such summary prepared by or on behalf of the Issuer is accurate in all material respects.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative, governmental or other proceedings the result of which is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since 31st December, 2007 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended;
(o) that in relation to each Tranche of Notes for which any Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer; and
(p) that any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, inaccurate or inconsistent when read with other parts of the provisions Base Prospectus and any translation of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and such summary prepared by or on behalf of the Issuer is accurate in all material respects.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, 10.1 The Company represents and warrants to and undertakes to with the Dealers and each of them as followsUnderwriter in the following terms:
(a1) that:
(i) its most recently published audited consolidated financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed facts stated in the Base ProspectusRecitals are true and accurate in all material respects, that there has been no change nor and the Recitals shall for, and shall be regarded as being, an integral part of this Agreement which shall have the same force and effect as any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsother provision herein;
(b2) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained or to be contained in the Base Announcement or the Prospectus Documents are and shall at the date of issue thereof be true and accurate in all material respects and not misleading in any material respect and all statements expressions of intentionopinion, opinion or intention and expectation contained in the Base Prospectus expressed therein are honestly and reasonably held shall be fair and have been made after due and careful consideration;
(3) there will be no information not disclosed in the Prospectus Documents
(a) the omission of which makes any statement therein misleading or which, there is no other fact in the context of the issue of the Rights Shares, might be material for disclosure therein or matter omitted from the Base Prospectus (b) which (i) was or is necessary information which is material to an investor and their investment advisers for making enable investors to make an informed assessment of its the activities, assets and liabilities, financial position, management, profits and losses and prospects, prospects of the Company and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectRights Shares;
(d4) that there has not been any material adverse change in the financial or trading position of the Group since 30 June 2021;
(5) the returns for taxation purposes, which ought to have been made by or in respect of the companies in the Group in Hong Kong and/or any other part of the world, have been duly made and there are no circumstances known to any company in the Group or any of their respective directors, after making due and careful enquiry, which might be the occasion of any dispute with the relevant revenue or other appropriate authorities which is materially adverse to the Group and all such returns are in all material respects up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities;
(6) there are existing valid policies of insurance against all liabilities, risks and losses against which it is a company normal or prudent to insure in respect of all major property and assets owned by and all businesses carried on by the companies in the Group and nothing has been done or has been omitted to be done whereby any of the said policies has or may become void or is likely to be avoided;
(7) the statements, forecasts, estimates and expressions of opinion, intention and expectation to be contained in the Announcement or the Prospectus Documents shall at the respective dates of issue thereof be made after due and proper consideration, shall at the respective dates of issue thereof be fair and honest and represent reasonable expectations based on facts known or which on reasonable enquiry ought to have been known to the Company and/or the Directors or any of them;
(8) all information necessary for the purpose of, or in the course of preparation of, the Announcement and the Prospectus Documents, and the replies to the Verification Notes or which ought reasonably to have been disclosed or made available by the Company or the Directors was so disclosed or made available to the Underwriter or its respective legal advisers fully, fairly and accurately and the replies to the Verification Notes (which will be prepared or approved by persons having appropriate knowledge and responsibility to enable it properly to provide such replies) given by the Company and the Directors will be true, accurate and complete in all material respects and will contain all material information and particulars with regard to the subject matter thereof;
(9) each member of the Group has been duly incorporated and is validly existing under the law laws of the jurisdiction of its place incorporation and the information contained in the Recitals to this Agreement is true and accurate; without limiting the foregoing, except for the Rights Issue and the outstanding share options under the existing share option scheme of incorporationthe Company as at the date hereof, no person has any outstanding warrant, option, pre-emptive right or any other right of any description to require any Share to be allotted or issued by the Company;
(10) except as has been disclosed by the Company by public announcement, neither the Company nor any of its subsidiaries has entered into any contract or commitment of an unusual or onerous nature which, in the context of Rights Issue, might be material for disclosure;
(11) the Company and its subsidiaries has carried on its business in the ordinary and usual course and there has been no adverse change, nor any development reasonably, likely to result in a material adverse change in the financial or trading position of the Company or any of its subsidiaries which has not been fully and properly disclosed by the Company in the form of an announcement in accordance with the Listing Rules or otherwise as required by the Listing Rules;
(12) the Prospectus Documents shall contain all particulars and information required by, and has full shall be in accordance with the Companies (WUMP) Ordinance, the Listing Rules, the rules and regulations of the Stock Exchange and all other relevant statutory provisions and governmental regulations in Hong Kong and shall not involve any breach of or default under any agreement, trust deed or instrument to which any member of the Group is a party;
(13) the Company shall not from the date hereof until the Latest Time for Acceptance issue any Share or issue or grant any options or other securities convertible into, exchangeable for or which carry rights to acquire any Share;
(14) on the date of issue of the Rights Shares, the Company shall have the power under its Articles of Association, and authority shall have taken all necessary corporate or other action to conduct its business as described enable it, and no other consents, actions, authorisations or approvals are necessary to enable or authorise it other than the obtaining the consents and approvals referred to in Clause 2.1:
(a) to allot and issue the Base Rights Shares in accordance with the Prospectus and Documents without any sanction; and
(b) to execute enter into and perform its obligations under this Agreement and to make the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by itRights Issue;
(e15) that the execution Rights Shares, when allotted and delivery issued, shall be issued free from all liens, charges, encumbrances and third party rights, interests or claims of any nature whatsoever and shall rank pari passu in all respects among themselves and with the Shares then in issue;
(16) the obligations of the Agreements have been duly authorised by it and Company under this Agreement constitute its legally valid and legally binding obligations of the Company enforceable in accordance with their respective the terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlesherein;
(f17) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with neither the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, or any indenture, trust deed, mortgage or other agreement or instrument to which it is a party or by which it or Company nor any of its properties are bound, Subsidiaries is engaged in or infringe any existing applicable law, rule, regulation, judgment, order or decree the subject of any governmentmaterial litigation, arbitration or governmental body proceeding or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed in the Base Prospectus, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notesinvestigation; and, to the best of its the knowledge, information and belief of the directors of the Company, upon due and careful inquiry, no such actionslitigation, suits arbitration, proceeding or proceedings are investigation is threatened or contemplatedpending, nor are there any circumstances which may give rise to any such litigation, arbitration, proceeding or investigation;
(i) that no consent, approval, authorisation, order, registration or qualification of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (i18) the execution Company has full right, power and delivery of, authority under its constitutional documents (where relevant) to enter into this Agreement and compliance with the terms of, Rights Issue in the Agreements have manner set out herein and this Agreement (and its performance) has been obtained and are in full force and effect and duly authorised (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be authorisation remaining in full force and effect), executed and delivered by, and constitutes a valid and legally binding obligation of the Company; the Rights Issue is not in contravention of any law or regulation binding on any member of the Group;
(k19) that, the Company is not in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf breach of any of them hasrules, within six-month period prior to the date hereof, offered regulations or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security requirements of the same class Stock Exchange or series as its listing agreement made with the Notes being issued;
Stock Exchange (l) that it has not entered and, without limiting the foregoing, all announcements, other disclosures, registrations and will not enter into filings required to be made by the Company under or in accordance with any contractual agreement with respect such rules, regulations or requirements, or pursuant to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) thatsuch listing agreement, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is have been duly made) acting on behalf of any of them, in all material respects; the Company has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with all other applicable rules, regulations and other requirements in all material respects which are relevant to the offering transactions contemplated by this Agreement (including rules governing restrictions on and/or disclosure of dealings);
(20) the Company has not been, is not and will not be at any time engaged in "insider dealing" or any other form of "market misconduct" (each as defined in the SFO) in connection with the Rights Issue and the related transactions entered into or to be entered into pursuant to this Agreement; the Company has not taken and will not take, directly or indirectly, any action designed or which was designed, or which constitutes or has constituted or might reasonably be or have been expected to cause or result in, stabilisation or manipulation of the price of any shares or other securities of the Company;
(21) the Company has applied the Model Code for Securities Transactions by Directors of Listed Issuers set out in Appendix 10 to the Listing Rules for transactions in its securities by its directors and such Code has been and will be fully complied with in connection with the Rights Issue and the related transactions entered into or to be entered into pursuant to this Agreement;
(22) when the Company is under a duty imposed by laws and regulation to do so, the Company will make all appropriate disclosures pursuant to, and will comply in all respects with, the Listing Rules, the Hong Kong Code on Takeovers and Mergers and the Part XV of the SFO in connection with the Rights Issue and the related transactions entered into or to be entered into pursuant to this Agreement; and
(23) the Company will promptly provide the Underwriter with all such information known to it or which on reasonable enquiry ought to be known to it relating to the Group as may be required by the Underwriter in connection with the Rights Issue for the purpose of complying with any applicable law, regulation or direction (including the establishment of any defence to any action under any of the same, whether relating to due diligence or otherwise) or any requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of NotesStock Exchange, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (SFC or any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notesother applicable regulatory body.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed 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 is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since December 31, 2004 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended; and
(o) that in relation to each Tranche of Notes for which a Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, with it has not issued and will not issue, without the provisions prior consent of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) that Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer RG hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its most recently published that the audited consolidated financial statements (of the audited accounts); and
(ii) its Group for the three most recently published unaudited interim consolidated recent financial statements, years were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in the Prospectus Regulation United Kingdom consistently applied and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Group as at the date to which they were prepared (the "relevant date") and (ii) its the consolidated results of operations, cash flows operations and changes in shareholders’ equity the financial position of the Group for the financial period year ended on the relevant date andand that there has been no material adverse change nor any development or event involving a prospective material adverse change of which RG is, or might reasonably be expected to be, aware in the consolidated condition (financial or otherwise) of the Group since the most recent relevant date, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsOffering Circular;
(b) its most recently published statutory (parent only) financial statements are correct that the Offering Circular contains all the information relating to RF, to it and complete (as to the term is understood pursuant Group and the Notes to article 958c be issued or guaranteed by it required by section 80 of the Swiss Code of Obligations) FSMA and have been prepared on a consistent basis in accordance otherwise complies with Swiss the Listing Rules and also contains all the information relating to RF, to it and to the Group and the Notes to be issued or guaranteed by it required by English law and, except as disclosed in and regulations and otherwise complies with such law and regulations to the Base Prospectus, since extent applicable to the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsProgramme;
(c) that the Base Prospectus contains all information with respect to itself it has been duly incorporated and is validly existing under English law (and the Notes laws of any other jurisdiction in which it carries on business) with full power and authority and legal capacity to be issued under this Agreement that is material own, lease and operate its properties and conduct its business and, in the context of its capacity as an Issuer, to issue the Notes to be issued under this Agreement, all statements of fact contained upon the terms and conditions set out in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its assets and liabilities, financial position, profits and losses and prospects, the rights attaching to the Notes and the reasons for Agreements and, in its capacity as Guarantor, to give the issuance and its impact on Guarantee in respect of the Issuer or (ii) the omission of which made or makes any statement therein misleading Notes issued by RF and, in any material respect;
(d) that it is a company duly incorporated and validly existing under the law of its place of incorporationeach case, and has full power and authority to conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Notes and the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(ed) that the issue of Notes and the execution and delivery of the Agreements by it, in its capacity as an Issuer, and the giving of the Guarantee, in its capacity as Guarantor, have been duly authorised by it and, in the case of Notes, upon due execution, issue and constitute delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements constitute, its legal, valid and legally binding obligations enforceable in accordance with their respective terms subject as specified in the most recent English legal opinion provided to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre the Dealers and similar laws of general applicability relating the Trustee pursuant to or affecting creditors’ rights and to general equity principlesthis Agreement;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements by it will not conflict with infringe any English law or regulation and are not contrary to the provisions of its memorandum and articles of association and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default is subsisting in relation to any outstanding Note issued or guaranteed (if applicable) by it and no event has occurred which might constitute (after an issue of such Notes) an Event of Default thereunder;
(g) that, save as described in the Offering Circular or as otherwise disclosed in writing by it to the Base ProspectusDealers, there are no pending actionsaction or proceeding of or before any court or administrative tribunal has been commenced against any member of the Group or, suits or proceedings against or affecting itto the best of the its knowledge and belief, is threatened, which (i) would restrain or affect the execution and delivery by each of it and RF of the Agreements to which it and RF are reasonably likely parties or the performance and compliance by each of it and RF of, and with, the obligations expressed to be determined adversely assumed by each of them respectively therein or the legality, validity or enforceability thereof, or (ii) which would be reasonably expected to it and succeed and, if its determined would individually or in the aggregate successful, to have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under position of the Agreements, or which are otherwise material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplatedGroup;
(ih) that no consentconsents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency or body authority in the United Kingdom is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by it or RF, as the case may be, for or in connection with (i) the execution, issue and offering of the Notes under the Programme and compliance by it or RF, as the consummation case may be, with the terms of the other transactions contemplated any Notes issued by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes it under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it and RF, as the case may be, for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by it or RF, as the case may be, with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect effect;
(j) its obligations to pay the principal of and (ii) interest on the execution, issue Notes issued by it and offering its obligations under the Guarantee in respect of Notes under issued by RF are, or when incurred will be, its direct, unconditional and unsecured obligations ranking pari passu in all respects and rateably without preference or priority, by reason of date of issue, currency of payment or otherwise, with all its other unsecured and unsubordinated obligations (whether outstanding at the Programme and compliance by it with the terms of such Notes will, on date hereof or before the Issue Date of such Notes, have been obtained and will be in full force and effecthereafter);
(k) thatthat none of it, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor or any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf (which for the avoidance of doubt shall not include any Dealer), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; andNotes issued or guaranteed (if applicable) by it;
(nl) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf (which for the avoidance of doubt shall not include any Dealer) have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; with respect to the Notes issued or guaranteed (if applicable) by it; and, where TEFRA D
(m) that in relation to each Tranche of Notes issued or guaranteed (if applicable) by it; for which a Dealer is indicated named as a Stabilising Manager in the applicable Final TermsPricing Supplement, it has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of such Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
(2) As at the date of this Agreement, RF hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) when prepared the audited non-consolidated financial statements of RF for the most recent financial year will be prepared in accordance with the requirements of law and with accounting principles generally accepted in the United Kingdom consistently applied and they will give a true and fair view of (i) the non-consolidated financial condition of RF as at the date to which they will be prepared (the “relevant date”) and (ii) the consolidated results of operations and changes in the financial position of RF for the financial year ended on the relevant date and that there has been no material adverse change nor any development or event involving a prospective material adverse change of which RF is, or might reasonably be expected to be, aware in the non-consolidated condition (financial or otherwise) of RF since its incorporation (in the case of the period prior to the preparation of such financial statements) or (in the case of the following period) since the most recent relevant date, except as disclosed in the Offering Circular.
(b) that the Offering Circular contains all the information relating to it and the Notes to be issued by it required by section 80 of the FSMA and otherwise complies with the Listing Rules and also contains all the information relating to it and the Notes to be issued by it required by English law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme;
(c) that it has been duly incorporated and is validly existing under English law (and the laws of any other jurisdiction in which it carries on business) with full power and authority and legal capacity to own, lease and operate its properties and conduct its business and to issue the Notes upon the terms and conditions set out in the Notes issued by it and the Agreements and execute and perform its obligations under the Notes issued by it and the Agreements to which it is a party;
(d) that the issue of Notes by it and the execution and delivery of the Agreements by it have been duly authorised by it and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements constitute, its legal, valid and binding obligations enforceable in accordance with their respective terms subject as specified in the most recent English legal opinion provided to the Dealers and the Trustee pursuant to this Agreement;
(e) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes and the performance of the terms of any Notes and the Agreements by it will not infringe any English law or regulation and are not contrary to the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1its memorandum and articles of association and will not result in any breach of the terms of, or constitute a default under, any instrument, agreement or order to which it is a party or by which it or its property is bound;
(f) that no Event of Default is subsisting in relation to any outstanding Note issued by it and no event has occurred which might constitute (after an issue of such Notes) an Event of Default thereunder;
(g) that, save as described in the Offering Circular or as otherwise disclosed in writing by it to the Dealers, no action or proceeding of or before any court or administrative tribunal has been commenced against it or, to the best of its knowledge and belief, is threatened, which (i) would restrain or affect the execution and delivery by it of the Agreements to which it is a party or the performance and compliance by it of, and with, the obligations expressed to be assumed by it therein or the legality, validity or enforceability thereof, or (ii) which would be reasonably expected to succeed and, if successful, to have a material adverse effect on its financial position;
(h) that no consents, approvals, authorisations, orders, filings, registrations or qualifications of or with any court or governmental authority in the United Kingdom is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by it for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of any Notes issued by it under the Programme or (ii) the execution and delivery of, and compliance with the terms of, the Agreements;
(i) that all corporate approvals and authorisations required by it for or in connection with (i) the execution, issue and offering of Notes by it under the Programme and compliance by it with the terms of any Notes issued by it under the Programme and (2ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect;
(j) its obligations to pay the principal of and interest on the Notes issued by it are, or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(Cwhen incurred will be, its direct, unconditional and unsecured obligations ranking pari passu in all respects and rateably without preference or priority, by reason of date of issue, currency of payment or otherwise, with all its other unsecured and unsubordinated obligations (whether outstanding at the date hereof or hereafter);
(k) that none of it, its affiliates, and any persons acting on any of their behalf (which for the avoidance of doubt shall not include any Dealer), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes issued by it;
(l) that it, its affiliates, and each person acting on any of their behalf (which for the avoidance of doubt shall not include any Dealer) have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act with respect to the Notes issued by it; and
(m) that in relation to each Tranche of Notes issued by it for which a Dealer is named as a Stabilising Manager in the applicable Pricing Supplement, it has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of such Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
4.2 (3) With regard to each issue of Notes, the relevant Issuer and the Guarantor (if applicable) shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 subclauses (1) and (2) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) provided always that each of the above representations, warranties and as at agreements shall be qualified by, and to the Issue Date extent of, any information disclosed in writing for the purpose of such Notesqualifications to, and acknowledged in writing by, the relevant Dealers or, as the case may be, the Dealers and the Arranger on or before the relevant Agreement Date.
4.3 The Issuer (4) RF and RG shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 subclauses (1) and (2) on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 The (5) Except to the extent as may be acknowledged by the Dealers in sub-clause (3), representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations, warranties and undertakings set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the each Issuer represents, warrants and undertakes to the Dealers and each of them as follows, as to itself:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Corporation (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statementsstatements of the Corporation, were in each case prepared in accordance with the requirements of generally accepted accounting principles in the Prospectus Regulation United States and that they present fairly in all material respects (i) its the consolidated financial condition of the Corporation as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Corporation for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise), results of operations, prospects or business affairs of the Corporation since the date of the last filed accounts except as disclosed in the Base Prospectus, Offering Circular;
(b) that the Bank’s most recently published “Consolidated Report of the Condition and Income for a Bank with Domestic and Foreign Offices” was prepared in accordance with the regulatory instructions issued by the Federal Financial Institutions Examinations Council and that it presents fairly in all material respects (i) the financial condition of the Bank as at the date to which it was prepared (the relevant date) and (ii) the results of operations of the Bank for the financial period ended on the relevant date and that there has been no material adverse change nor or any development or event reasonably likely to involve involving a prospective material adverse change which is materially adverse to its in the consolidated condition (financial or otherotherwise), prospects, results of operations, prospects or general affairs, or that business affairs of the Issuer, as the case may be, Bank since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, last filed accounts except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsOffering Circular;
(c) that (i) the Base Prospectus Offering Circular contains all material information with respect to itself such Issuer and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all (ii) the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Offering Circular, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor and their investment advisers for making enable investors to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of each Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or to be issued under this Agreement, (iiiii) the omission description of which such Issuer set out in the Offering Circular is not misleading, inaccurate or inconsistent when read with other parts of the Offering Circular (iv) all reasonable enquiries have been made or makes any statement therein misleading in any material respectto ascertain such facts and to verify the accuracy of all such statements;
(d) that it the Offering Circular contains all the information required by section 87A of the FSMA and otherwise complies with the Prospectus Rules and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Directive;
(e) that such Issuer has been duly organised and is a company duly incorporated and validly existing in good standing under the law of its place jurisdiction of incorporation, and has organisation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(ef) that such Issuer (i) has all licences, permits, authorisations, consents and approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Offering Circular and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines except in the case of (i) and (ii) as is not material in the context of the Programme and/or the issue and offering of Notes under the Programme;
(g) that the issue of Notes and the execution and delivery of the Agreements by each Issuer have been duly authorised by it the relevant Issuer and, in the case of Notes, upon due execution, authentication, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the relevant Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principlesof creditors generally;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(gh) that the execution and delivery of the Agreements, the issueissue and, assuming compliance by the Dealers with their obligations hereunder, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to such Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of such Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement to which either Issuer is a party or by which either Issuer or its constitutive documentsproperty is bound;
(i) that no Event of Default or event which with the giving of notice or lapse of time would constitute an Event of Default is subsisting in relation to any outstanding Note;
(j) that such Issuer (i) is not in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time would constitute a default under any such instrument, agreement or order which would be material in the context of its properties are boundthe Programme and/or the issue and offering of Notes under the Programme; (ii) is not engaged (whether as defendant or otherwise) in, nor has such Issuer knowledge of the existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which would reasonably be expected to be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes under the Programme or proceedings against which would have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations business of either Issuer and (iii) has not taken any action nor, to the best of its knowledge or general affairs viewed as a wholebelief having made all reasonable enquiries, have any steps been taken or would materially legal proceedings commenced for the winding up or dissolution of such Issuer;
(k) that (i) all required consents, approvals, authorisations, orders, filings, registrations or qualifications of or with any court or governmental authority have been given, fulfilled or obtained and adversely affect its ability (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to perform its be taken, fulfilled or done, by either Issuer for or in connection with (a) the execution, issue and, assuming compliance by the Dealers with their obligations hereunder, offering of Notes under the Programme and compliance by each Issuer with the terms of any Notes issued under the Programme or (b) the execution and delivery of, and compliance with the terms of, the Agreements;
(l) that the Corporation and its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorisations; (ii) transactions are recorded as necessary to (A) permit preparation of financial statements in conformity with accounting rules and standards generally applicable in its jurisdiction of organisation and (B) maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorisation; and (iv) such Issuer and its consolidated Subsidiaries (if any) has made and kept books, or which are otherwise material records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of such entity and provide a sufficient basis for the preparation of such Issuer’s consolidated financial statements in accordance with accounting rules and standards generally applicable in the context United States;
(m) that neither such Issuer nor any of an issue its respective Subsidiaries nor, to the knowledge of Notessuch Issuer, any director, officer, agent, employee or affiliate of either Issuer or any of their respective Subsidiaries are currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC);
(n) that neither such Issuer nor any of their respective Subsidiaries, nor to such Issuer’s knowledge (having made all reasonable enquiries) any director, officer, agent, employee or other person associated with or acting on behalf of either Issuer or any of their respective Subsidiaries, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 (the FCPA); or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment prohibited under any applicable law or regulation equivalent to the FCPA;
(o) the operations of such Issuer and its Subsidiaries are and have been conducted at all times in compliance with money laundering statutes in the United States of America and of all jurisdictions in which each Issuer and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving either Issuer or any of their respective Subsidiaries with respect to Money Laundering Laws is pending and, to the best of its each Issuer’s knowledge, no such actions, suits or proceedings are threatened or contemplated;
(p) that it is not necessary under the laws of the United States of America or any political subdivision thereof that any Noteholder, Dealer or Principal Paying Agent should be licensed, qualified or otherwise entitled to carry on business in the United States of America or any political subdivision thereof (i) to enable any of them to enforce their respective rights under the Notes or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Notes;
(q) that (i) except as described in the Offering Circular all payments of principal, interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of the United States of America or any political subdivision thereof will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of the United States of America or any political subdivision or any authority thereof or therein having the power to tax and (ii) no consentstamp or other duty or similar tax is assessable or payable in, approvaland no withholding or deduction for or on account of, authorisationany taxes, orderduties, registration or qualification of or with any court assessments or governmental agency or body is required and no other action or thing charges of whatever nature is required to be takenmade by or within, fulfilled the United States of America or done for other subdivision of or authority therein or thereof having power to tax, in each case in connection with the issue authorisation, execution or delivery of the Notes under Agreements or with the Programme authorisation, execution, issue or the consummation delivery of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the AgreementsNotes;
(jr) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each Tranche of Notes for which any Dealer is named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer not to be unreasonably withheld or delayed, any press or other public announcement referring to the proposed issue of Notes, neither it nor any of its affiliates (as defined Notes unless the announcement adequately discloses that stabilising action may take place in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior relation to the date hereof, offered or sold Notes to be issued and the relevant Issuer authorises such Dealer to make all appropriate disclosure in the United States or relation to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security stabilisation instead of the same class or series as relevant Issuer, if so agreed between the Notes being issuedrelevant Issuer and the Dealer;
(ls) that it has not entered and will not enter into any contractual agreement with respect to translation prepared by either Issuer of the distribution description contained in the Offering Circular as required by Article 18 of any Notes except for this Agreement or any Subscription Agreement referred to hereinthe Prospectus Directive is accurate in all material respects;
(mt) thatthat any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, neither it nor any or materially inaccurate or inconsistent when read with other parts of the Offering Circular;
(u) that none of either Issuer, its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, (except that no representation, warranty or undertaking is made with respect to any Dealer or the Arranger) has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nv) that itthe Corporation, any of its affiliates, and each person acting on any of their behalf (other than the relevant Dealer as to which no representation is madeDealers) acting on behalf of any of them have complied and will comply with the offering restrictions requirement condition of Regulation S under the Securities Act;
(w) the Corporation is a “reporting issuer” within the meaning of Regulation S;
(x) each Issuer is not, and as a result of the offering of Notes or the receipt or application of the proceeds thereof will not be, required to register under the Investment Company Act of 1940, as amended; and, where TEFRA D is indicated in
(y) Notes offered by the applicable Final Terms, with Bank are securities exempt from the provisions registration requirements of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1the Securities Act pursuant to Section 3(a)(2) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C)thereof.
4.2 With regard to each issue of Notes, the relevant Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Each Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations, warranties and undertakings set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative, governmental or other proceedings the result of which is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since 31st December, 2009 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended;
(o) that in relation to each Tranche of Notes for which any Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer; and
(p) that any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, inaccurate or inconsistent when read with other parts of the provisions Base Prospectus and any translation of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and such summary prepared by or on behalf of the Issuer is accurate in all material respects.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (a) As at the date of this Agreement, each of the Issuer and the Guarantor, jointly and severally represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its that the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation law and with Dutch GAAP consistently applied and that they present fairly give a true and fair view of (iA) its consolidated the financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (iiB) its the results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the financial condition, assets or business of the Issuer since the relevant date except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(cii) that (A) the Base Prospectus contains all material information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Programme and/or the issue or offering of Notes under the Programme with respect to the Issuer and the Notes to be issued under this Agreement, all statements of fact contained in (B) the Base Prospectus are is true and accurate in all material respects and does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements made in the Base Prospectus, in the light of the circumstances under which they were made, not misleading in any material respect and all there is no other material fact or matter omitted from the Base Prospectus which was or is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Issuer and of the rights attaching to the Notes to be issued under this Agreement, (C) the statements of intention, opinion opinion, belief or expectation contained in the Base Prospectus are honestly and reasonably held made or held; and (D) all reasonable enquiries have been made after due to ascertain such facts and careful consideration, there is no other fact or matter omitted from to verify the accuracy of all such statements;
(iii) that the Base Prospectus contains all information required by the Law on Prospectuses for Securities and the laws and regulations of Luxembourg and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Directive;
(iv) that (A) the statements of fact contained in any written materials which (iI) was are provided in addition to the Base Prospectus by the Issuer and/or the Guarantor to the relevant Dealers to use and/or distribute in the context of the Programme and/or the issue or offering of Notes under the Programme, and (II) are specified, in the case of Notes in relation to which a Subscription Agreement is necessary information which is material to an investor and their investment advisers for making an informed assessment entered into, in the Subscription Agreement (or, in the case of its assets and liabilitiesother Notes, financial position, profits and losses and prospectsin the Dealer Accession Letter) (if any, the rights attaching to the Notes Written Materials) are true and the reasons for the issuance accurate in all material respects and its impact on the Issuer or (ii) there are no other facts the omission of which made would, in the context of the Programme and/or the issue or makes offering of Notes under the Programme, make any statement therein such statements, when read together with the Base Prospectus, misleading in any material respect; and (B) the statements of intention, opinion, belief or expectation contained in the Written Materials are honestly and reasonably made or held;
(dv) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to conduct its business as described in the Base Prospectus and has the power and capacity to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(evi) that the Issuer is conducting its business and operations in all material respects in compliance with all applicable laws, regulations and guidelines, including but not limited to, the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht);
(vii) that the issue of Notes and the execution and delivery of the Agreements to which it is a party by the Issuer have been duly authorised by the Issuer and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements to which it is a party constitute, legal, valid and binding obligations of the Issuer enforceable in accordance with their respective terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally;
(viii) that the execution and delivery of the Agreements have been duly authorised by to which it and constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreementsis a party, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will to which it is a party do not conflict with any law, regulation, order, rule, decree or statute applicable to the Issuer and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default underunder or call for the creation of a mortgage, its constitutive documentscharge, pledge, lien or other similar encumbrance (other than the Trust Deed) pursuant to any indenture, trust deed, mortgage or other instrument or agreement or instrument order to which it the Issuer is a party or by which it or any of its properties are bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its propertiesparty;
(hix) that no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which might constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(x) that, except as disclosed in the Base Prospectus, there are no pending actionsgovernmental, suits legal or arbitration proceedings against the Issuer (including any such proceedings which are pending or affecting itthreatened, of which the Issuer or the Guarantor is aware including claims against the directors of the Issuer) which are reasonably likely to be determined adversely to it and have, or have had, since the date of the last audited accounts of that Issuer (or, if none, its determined would individually or in the aggregate have date of incorporation), a material adverse effect on the condition (financial condition, assets or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under business of the Agreements, or which are otherwise material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplatedIssuer;
(ixi) that no consent, approval, authorisation, order, registration or qualification the Issuer (A) is not in breach in any material respect of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained or in default under, any instrument, agreement or order to which it is a party and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it no event has occurred which with the terms giving of notice or lapse of time or other condition would constitute such Notes willa default under any such instrument, on agreement or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notesorder; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer's annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the "Commission") (the "Form 10-K"), and incorporated by reference in the Offering Circular, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case have been prepared in accordance conformity with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) United States generally accepted accounting principles applied on a consistent basis, and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may beOffering Circular, since the date of such latest audited annual financial statements neither the audited accountsIssuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(b) its most recently published statutory (parent only) financial that the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements are correct and complete (as made in the term is understood pursuant to article 958c Offering Circular, in the light of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law andcircumstances under which they were made, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ ' rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed 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 is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since December 31, 1997 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the "Exchange Filed Information"). Each such report and statement filed by the Issuer and incorporated by reference in the Offering Circular, when so filed, contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder; and
(n) that the Issuer is not now and, where TEFRA D is indicated as a result of the issue of any Notes, will not be an "investment company" as defined in the applicable Final TermsUnited States Investment Company Act of 1940, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and as amended.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer’s annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the “Commission”) as it may be amended by Form 10-K/A (the “Form 10-K”), and incorporated by reference in the Base Prospectus, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis, (ii) its most recently published unaudited interim consolidated the financial statementsinformation included in the Base Prospectus, were including financial statements incorporated by reference in each case the Base Prospectus, was prepared in accordance compliance with the requirements of the Prospectus Regulation and that they present fairly (iiii) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which of such latest audited annual financial statements neither the most recent such accounts were prepared Issuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been no any material adverse change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its in the condition (financial or otherotherwise), prospectsbusiness, prospects or results of operations or general affairsof the Issuer and its subsidiaries considered as a whole;
(cb) that the Base Prospectus contains all information with respect does not contain an untrue statement of material fact or omit to itself and the Notes to be issued under this Agreement state a material fact that is material necessary in order to make the context of the Notes to be issued under this Agreement, all statements of fact contained made in the Base Prospectus are true and accurate Prospectus, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed defendant or otherwise) in, nor has the Issuer knowledge of the existence of, or any threat of, any legal, arbitration, administrative, governmental or other proceedings the result of which is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since 31st December, 2005 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the “Exchange Filed Information”). Each such report and statement filed by the Issuer and incorporated by reference in the Base Prospectus, as amended to the date hereof and to the date of publication of any supplement to the Base Prospectus or a new Base Prospectus pursuant to clause 5(2)(b), contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an “investment company” as defined in the United States Investment Company Act of 1940, as amended;
(o) that in relation to each Tranche of Notes for which any Dealer is indicated named as a Stabilising Manager in the applicable Final Terms, it has not issued and will not issue, without the prior consent of any such Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued and the Issuer authorises such Dealer to make such disclosure instead of the Issuer, if so agreed between the Issuer and the Dealer; and
(p) that any summary required pursuant to Article 19(4) of the Prospectus Directive is not misleading, inaccurate or inconsistent when read with other parts of the provisions Base Prospectus and any translation of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and such summary prepared by or on behalf of the Issuer is accurate in all material respects.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes Notes, as at the Signing Date (any agreement on such Agreement Date dates being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer represents(with respect to itself), warrants PT (with respect to itself and undertakes the Issuer) and PTC (with respect to itself and the Issuer) hereby represent, warrant and undertake to the Dealers and each of them as follows:
(a) that:
(i) its that the most recently published audited annual financial statements of the Issuer and the most recently published unaudited semi-annual financial statements of the Issuer, the most recently published audited consolidated annual financial statements (of PT and the audited accounts); and
(ii) its most recently published unaudited interim consolidated semi-annual financial statements, statements of PT and the most recently published audited annual financial statements of PTC and the most recently published unaudited semi-annual financial statements of PTC were in each case prepared in accordance with the requirements of law and, in the Prospectus Regulation case of the Issuer, with generally accepted accounting principles in The Netherlands, in the case of PT, with IFRS, and in the case of PTC, with generally accepted accounting principles in Portugal, consistently applied and that they present fairly give a true and fair view of (i) its the financial condition of the Issuer, the consolidated financial condition of PT and the financial condition of PTC, as the case may be, as at the date to which they were prepared (the “relevant date”) and (ii) its the results of operationsoperations of the Issuer, cash flows the consolidated results of operations of PT and changes in shareholders’ equity the results of operations of PTC, as the case may be, for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, and that there has been no material adverse change nor or any development or event reasonably likely to involve involving a prospective material adverse change which is materially adverse to its consolidated in the condition (financial or otherotherwise), prospects, results of operations, prospects or general affairs, or that business affairs of the Issuer, PT or PTC, as the case may be, since the date of the last audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsOffering Circular;
(cb) that (i) the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that Offering Circular is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not there are no other facts in relation thereto, the omission of which would in the context of the issue of the relevant Notes and/or the Programme, as the case may be, make any statement in the Offering Circular misleading in any material respect respect, (ii) the summary set out in the Offering Circular is not misleading, inaccurate or inconsistent when read with other parts of the Offering Circular, and all (iii) the statements of intention, opinion opinion, belief or expectation contained in the Base Prospectus are Offering Circular, were honest and reasonable at the date made and are, except to an extent that is not material in the context of the Programme or the issue of any Notes, honestly and reasonably held held;
(c) that the Offering Circular contains all the information required by section 87A of the FSMA and have been made after due otherwise complies with the Prospectus Rules and careful consideration, there is no other fact or matter omitted from also contains all the Base Prospectus which information required by Dutch (iin the case of the Issuer) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment Portuguese (in the case of its assets PT and liabilities, financial position, profits PTC) law and losses regulations and prospects, the rights attaching otherwise complies with such law and regulations to the Notes extent applicable to the Programme and has been published as required by the Prospectus Directive and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectProspectus Regulation;
(d) that it the Issuer has been duly incorporated, has no subsidiaries and is a company duly incorporated and validly existing under Dutch law (and the law laws of its place of incorporation, and has any other jurisdiction in which it carries on business) with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that PT and each of its consolidated subsidiaries has been duly incorporated and is validly existing under the law of its incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Offering Circular and to execute and perform its obligations under the Agreements to which it is a party;
(f) that updating of the Programme, the issue of Notes and the execution and delivery of the Agreements to which it is a party by each of the Issuer, PT and PTC have been duly authorised by the Issuer, PT and PTC and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements to which it and constitute its is a party constitute, legal, valid and legally binding obligations of the Issuer, PT and PTC enforceable in accordance with their respective terms subject to bankruptcyapplicable laws, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar in particular laws of general applicability relating to or bankruptcy and other laws and equitable principles affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the AgreementsAgreements to which it is a party, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements to which it is a party will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer, PT or PTC to which their respective property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer, PT or PTC and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer, PT or PTC is a party or by which the Issuer, PT or PTC or their respective property is bound;
(h) that no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(i) that, except as disclosed in the Offering Circular or any amendment or supplement thereto, none of the Issuer, PT or PTC (i) except when it would, individually and in the aggregate, not reasonably be expected to have a material adverse effect on the ability of the Issuer to perform its constitutive documentsobligations under the Notes or, in the case of the Issuer, PT and/or PTC, the Agreements, is in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; or (ii) nor any member of its properties the PT Group is involved in any legal or arbitration proceeding (including any proceedings which are boundpending or threatened of which PT is aware) which may be reasonably expected to have or have had in the 12 months preceding the date of making this representation, a significant effect on the financial position of the Issuer, PT, PTC or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except the PT Group save as disclosed in the Base Prospectus, there are no pending actions, suits Offering Circular; or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or otheriii) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; andhas taken any action nor, to the best of its knowledgetheir knowledge or belief having made all reasonable enquiries, no such actionshave any steps been taken or legal proceedings commenced for the winding up or dissolution of the Issuer, suits PT or proceedings are threatened or contemplatedPTC;
(ij) that (except for any required notifications to or filings with the Authority for the Financial Markets (Stichting Autoriteit Financiële Markten and the Financial Services Authority) and the Bank of England) no consentfurther consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency or body is authority are required and no other action actions or thing is things (including, without limitation, the payment of any stamp or other similar tax or duty) are required to be taken, fulfilled or done by the Issuer, PT or PTC for the validity of (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (iii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained to which it is a party;
(k) that all necessary corporate approvals and are authorisations required by the Issuer, PT and PTC under Dutch and/or Portuguese law for or in full force and effect and connection with (iii) the creation, execution, issue and offering of Notes under the Programme and compliance by it the Issuer with the terms of such any Notes willissued under the Programme and (ii) the execution and delivery of, on or before and compliance with the Issue Date of such Notesterms of, the Agreements to which it is a party have been obtained and will be are in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has is not entered and will not enter into necessary under the laws of The Netherlands or Portugal that any contractual agreement with respect Noteholder, Dealer or Agent or the Trustee should be licensed, qualified or otherwise entitled to carry on business in The Netherlands or Portugal (i) to enable any of them to enforce their respective rights under the Notes or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Notes, save to the distribution extent of any Notes except for this Agreement the qualifications mentioned in the legal opinion of legal advisers as to matters of Dutch law or any Subscription Agreement Portuguese law, as the case may be, as referred to hereinin Appendix A or clause 3, whichever has most recently been furnished;
(m) that, neither it nor except as set forth in the Offering Circular all payments of principal, premium (if any), interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of The Netherlands will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of The Netherlands or any political subdivision or any authority thereof or therein having the power to tax;
(n) that all Notes will, upon issue, be direct, unconditional, unsubordinated and (subject to the provisions of Condition 3) unsecured obligations of the Issuer and rank pari passu among themselves and (save for certain obligations required to be preferred by law) equally with all other unsecured obligations (other than subordinated obligations, if any) of the Issuer, from time to time outstanding; and
(o) that none of the Issuer, PT or PTC, any of its their affiliates, nor any persons acting on any of their behalf (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themDealers or Arranger), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, Notes and each person (other than of the relevant Dealer as to which no representation is made) acting on behalf of any of them have foregoing persons has complied and will comply with the offering restrictions requirement requirements of Regulation S and, where TEFRA D is indicated in under the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and Securities Act.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, each of the Issuer (as to itself), PT (as to itself and the Issuer) and PTC (as to itself and the Issuer) shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 The (3) Each of the Issuer (as to itself), PT (as to itself and the Issuer) and PTC (as to itself and the Issuer) shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus aggregate nominal amount of the Programme is increased in accordance with clause 12 and, in the case of Clauses 4(1)(a), (b) and (c) only on each date on which the Offering Circular is revised, supplemented or amended.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall shall, except where specifically agreed in writing in relation to any Series of Notes, continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, each Issuer and the Guarantor (where the Issuer is CSF) jointly and severally hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated and unconsolidated financial statements (if any) of each Issuer and the audited accounts)Guarantor; and
(ii) its the most recently published unaudited interim consolidated and unconsolidated financial statementsstatements (if any) of each Issuer and the Guarantor, were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in the Prospectus Regulation United Kingdom consistently applied (except as disclosed therein) and that they present fairly give a true and fair view of (i) its the consolidated and unconsolidated financial condition position of each Issuer and the Guarantor as at the date to which they were prepared (the "relevant date") and (ii) its the consolidated and unconsolidated results of operations, cash flows operations of each Issuer and changes in shareholders’ equity the Guarantor for the financial period year ended on the relevant date andand that there has been no material adverse change in the consolidated or unconsolidated position (financial or trading) of each Issuer and the Guarantor since the most recent relevant date, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsOffering Circular;
(b) that each Issuer is a public limited company validly existing under the laws of England with power and authority to conduct its most recently published statutory (parent only) financial statements are correct business as presently conducted and complete (as described in the term is understood pursuant Offering Circular, to article 958c issue the Notes, to execute and deliver this Agreement, the Trust Deed and the Agency Agreement and to comply with the provisions of the Swiss Code of Obligations) Notes, this Agreement, the Trust Deed, the Agency Agreement and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsGlobal Note;
(c) that the Base Prospectus Offering Circular contains all material information with respect to itself each Issuer and its subsidiaries and the Notes statements contained therein relating to be issued under this Agreement that is each Issuer and its subsidiaries are in every material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are particular true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus there are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus which (i) was or is necessary information which is material facts in relation to an investor and their investment advisers for making an informed assessment of its assets and liabilities, financial position, profits and losses and prospects, the rights attaching to the Notes and the reasons for the issuance each Issuer and its impact on the Issuer or (ii) subsidiaries the omission of which made or makes would in the context of the issue of the Notes make any statement therein in the Offering Circular misleading in any material respect;
(d) that it is a company duly incorporated the Offering Circular contains all the information required by section 80 of the FSMA and validly existing otherwise complies with the listing rules made by the London Stock Exchange under the law of its place of incorporation, and has full power and authority to conduct its business as described in FSMA (the Base Prospectus and to execute and perform its obligations under the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by it"Listing Rules");
(e) that the execution and delivery issue of the Agreements Notes and the execution of this Agreement, the Trust Deed and the Agency Agreement by each Issuer have been duly authorised by it each Issuer and that upon due execution, issue and delivery the same will constitute its legal, valid and legally binding obligations of each Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating bankruptcy and other laws affecting the rights of creditors generally and the qualifications referred to or affecting creditors’ rights and in the legal opinion referred to general equity principlesin paragraph 6 of Appendix A;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(g) that the execution and delivery of the Agreementsthis Agreement, the issue, offering Trust Deed and distribution the Agency Agreement by each Issuer and the issue of the Notes when duly authorised and the performance of the terms of any Notes the Notes, this Agreement, the Trust Deed and the Agreements Agency Agreement by each Issuer will not conflict with infringe any applicable law or regulation of the United Kingdom and are not contrary to the provisions of the Memorandum and Articles of Association of each Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, any instrument or any indenture, trust deed, mortgage or other agreement or instrument to which it each Issuer is a party or by which it or its property is bound which is material in the context of the issue of the Notes;
(g) that neither Issuer nor any of its properties their subsidiaries is involved in any litigation or arbitration proceedings relating to claims or amounts which are bound, material in the context of the issue of the Notes nor so far as either Issuer is aware is any such litigation or infringe any existing applicable law, rule, regulation, judgment, order arbitration pending or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its propertiesthreatened;
(h) that except as disclosed in all consents and approvals of any court, government department or other regulatory body of the Base ProspectusUnited Kingdom required by each Issuer for the execution and delivery of this Agreement, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it the Trust Deed and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially Agency Agreement by each Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and, to the best of its knowledge, no such actions, suits or proceedings are threatened or contemplated;
(i) that no consent, approval, authorisation, order, registration or qualification of or with any court or governmental agency or body is required and no other action or thing is required to be taken, fulfilled or done for the issue of the Notes under and the Programme or the consummation performance of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue terms of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery ofNotes, and compliance with the terms ofthis Agreement, the Agreements Trust Deed and the Agency Agreement by each Issuer have been obtained and are in full force and effect and effect;
(iii) that no event relating to either Issuer has occurred which would constitute (after the execution, issue and offering of the Notes) an event of default under the Notes or which with the giving of notice or the lapse of time or other condition would (after the issue of the Notes) constitute an event of default;
(j) that in relation to each Tranche of Notes under for which a Dealer is named as a Stabilising Manager in the Programme applicable Pricing Supplement, neither Issuer has issued and compliance by it with neither Issuer will issue, without the terms prior consent of such that Dealer, any press or other public announcement referring to the proposed issue of Notes will, on or before unless the Issue Date of such Notes, have been obtained and will announcement adequately discloses that stabilising action may take place in relation to the Notes to be in full force and effectissued;
(k) thatthat neither Issuer, in relation to each issue of Notes, neither it nor any of its their affiliates (as defined in Rule 405 902(c) under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is madeDealers) acting on its or their behalf of any of them, has have engaged or will engage in any directed selling efforts (as defined in Rule 902(c) Regulation S under the Securities Act) with in respect to of the Notes; and
(nl) that iteach Issuer, its affiliates and any of its affiliates, and each person (other than the relevant Dealer as to which no representation is madeany Dealer) acting on its or their behalf of any of them have complied with and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in under the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and Securities Act.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, each of the Issuer Issuers shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 The Issuer (3) Each of the Issuers shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (Cadbury Schweppes Public LTD Co)
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer represents(with respect to itself), warrants PT (with respect to itself and undertakes the Issuer) and PTC (with respect to itself and the Issuer) hereby represent, warrant and undertake to the Dealers and each of them as follows:
(a) that:
(i) its that the most recently published audited annual financial statements of the Issuer and the most recently published unaudited semi-annual financial statements of the Issuer, the most recently published audited consolidated annual financial statements (of PT and the most recently published audited accounts); and
(ii) its consolidated semi-annual financial statements of PT and the most recently published audited annual financial statements of PTC and the most recently published unaudited interim consolidated semi-annual financial statements, statements of PTC were in each case prepared in accordance with the requirements of law and, in the Prospectus Regulation case of the Issuer, with generally accepted accounting principles in The Netherlands, in the case of PT, with IFRS, and in the case of PTC, with generally accepted accounting principles in Portugal, consistently applied and that they present fairly give a true and fair view of (i) its the financial condition of the Issuer, the consolidated financial condition of PT and the financial condition of PTC, as the case may be, as at the date to which they were prepared (the “relevant date”) and (ii) its the results of operationsoperations of the Issuer, cash flows the consolidated results of operations of PT and changes in shareholders’ equity the results of operations of PTC, as the case may be, for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, and that there has been no material adverse change nor or any development or event reasonably likely to involve involving a prospective material adverse change which is materially adverse to its consolidated in the condition (financial or otherotherwise), prospects, results of operations, prospects or general affairs, or that business affairs of the Issuer, PT or PTC, as the case may be, since the date of the last audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairsOffering Circular;
(cb) that (i) the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that Offering Circular is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not there are no other facts in relation thereto, the omission of which would in the context of the issue of the relevant Notes and/or the Programme, as the case may be, make any statement in the Offering Circular misleading in any material respect and all (ii) the statements of intention, opinion opinion, belief or expectation contained in the Base Prospectus are Offering Circular, were honest and reasonable at the date made and are, except to an extent that is not material in the context of the Programme or the issue of any Notes, honestly and reasonably held held;
(c) that the Offering Circular contains all the information required by section 87A of the FSMA and have been made after due otherwise complies with the Prospectus Rules and careful consideration, there is no other fact or matter omitted from also contains all the Base Prospectus which information required by Dutch (iin the case of the Issuer) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment Portuguese (in the case of its assets PT and liabilities, financial position, profits PTC) law and losses regulations and prospects, the rights attaching otherwise complies with such law and regulations to the Notes extent applicable to the Programme and has been published as required by the Prospectus Directive and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectProspectus Regulation;
(d) that it the Issuer has been duly incorporated, has no subsidiaries and is a company duly incorporated and validly existing under Dutch law (and the law laws of its place of incorporation, and has any other jurisdiction in which it carries on business) with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that PT and each of its consolidated subsidiaries has been duly incorporated and is validly existing under the law of its incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Offering Circular and to execute and perform its obligations under the Agreements to which it is a party;
(f) that creation, updating and increase in the size of the Programme, the issue of Notes and the execution and delivery of the Agreements to which it is a party by each of the Issuer, PT and PTC have been duly authorised by the Issuer, PT and PTC and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements to which it and constitute its is a party constitute, legal, valid and legally binding obligations of the Issuer, PT and PTC enforceable in accordance with their respective terms subject to bankruptcyapplicable laws, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar in particular laws of general applicability relating to or bankruptcy and other laws and equitable principles affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the AgreementsAgreements to which it is a party, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements to which it is a party will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer, PT or PTC to which their respective property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer, PT or PTC and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer, PT or PTC is a party or by which the Issuer, PT or PTC or their respective property is bound;
(h) that no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(i) that, except as disclosed in the Offering Circular or any amendment or supplement thereto, none of the Issuer, PT or PTC (i) except when it would, individually and in the aggregate, not reasonably be expected to have a material adverse effect on the ability of the Issuer to perform its constitutive documentsobligations under the Notes or, in the case of the Issuer, PT and/or PTC, the Agreements, is in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; or (ii) nor any member of its properties the PT Group is involved in any legal or arbitration proceeding (including any proceedings which are boundpending or threatened of which PT is aware) which may be reasonably expected to have or have had in the 12 months preceding the date of making this representation, a significant effect on the financial position of the Issuer, PT, PTC or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except the PT Group save as disclosed in the Base Prospectus, there are no pending actions, suits Offering Circular; or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or otheriii) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; andhas taken any action nor, to the best of its knowledgetheir knowledge or belief having made all reasonable enquiries, no such actionshave any steps been taken or legal proceedings commenced for the winding up or dissolution of the Issuer, suits PT or proceedings are threatened or contemplatedPTC;
(ij) that (except for any required notifications to or filings with the Authority for the Financial Markets (Stichting Autoriteit Financiële Markten), the Dutch Central Bank and the Bank of England) no consentfurther consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency or body is authority are required and no other action actions or thing is things (including, without limitation, the payment of any stamp or other similar tax or duty) are required to be taken, fulfilled or done by the Issuer, PT or PTC for the validity of (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (iii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained to which it is a party;
(k) that all necessary corporate approvals and are authorisations required by the Issuer, PT and PTC under Dutch and/or Portuguese law for or in full force and effect and connection with (iii) the execution, issue and offering of Notes under the Programme and compliance by it the Issuer with the terms of such any Notes willissued under the Programme and (ii) the execution and delivery of, on or before and compliance with the Issue Date of such Notesterms of, the Agreements to which it is a party have been obtained and will be are in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has is not entered and will not enter into necessary under the laws of The Netherlands or Portugal that any contractual agreement with respect Noteholder, Dealer or Agent or the Trustee should be licensed, qualified or otherwise entitled to carry on business in The Netherlands or Portugal (i) to enable any of them to enforce their respective rights under the Notes or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Notes, save to the distribution extent of any Notes except for this Agreement the qualifications mentioned in the legal opinion of legal advisers as to matters of Dutch law or any Subscription Agreement Portuguese law, as the case may be, as referred to hereinin Appendix A or clause 3, whichever has most recently been furnished;
(m) that, neither except as set forth in the Offering Circular all payments of principal, premium (if any), interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of The Netherlands will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of The Netherlands or any political subdivision or any authority thereof or therein having the power to tax;
(n) that all Notes will, upon issue, be direct, unconditional, unsubordinated and (subject to the provisions of Condition 3) unsecured obligations of the Issuer and rank pari passu among themselves and (save for certain obligations required to be preferred by law) equally with all other unsecured obligations (other than subordinated obligations, if any) of the Issuer, from time to time outstanding;
(o) that in relation to each Tranche of Notes for which a Dealer is named as a Stabilising Manager in the applicable Final Terms, it nor has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued; and
(p) that none of the Issuer, PT or PTC, any of its their affiliates, nor any persons acting on any of their behalf (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themDealers or Arranger), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, Notes and each person (other than of the relevant Dealer as to which no representation is made) acting on behalf of any of them have foregoing persons has complied and will comply with the offering restrictions requirement requirements of Regulation S and, where TEFRA D is indicated in under the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and Securities Act;
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 Rule 144A Notes as at the Agreement Date for such Rule 144A Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Rule 144A Notes.
4.3 The , the Issuer (with respect to itself), PTC (with respect to itself and the Issuer) and PT (with respect to itself and the Issuer), in addition to the representations and warranties contained in clause 4(1) above, shall be deemed to repeat represent and warrant as follows:
(a) that the representationsOffering Circular does not include any untrue statement of a material fact nor does it omit to state a material fact necessary in order to make the statements made, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion light of the subscription and issue circumstances under which they were made, not misleading;
(b) that none of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange Act or any regulation promulgated thereunder, including, without limitation, Regulations T, U or X of the Board of Governors of the United States Federal Reserve System;
(c) that neither the Issuer, PTC, PT, any of their affiliates, nor any persons acting on any of their behalf (except Dealers) has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, stabilisation in violation of applicable laws or manipulation of the price of any debt security of any of the Issuer, PT or PTC to facilitate the sale or resale of any Notes.;
(d) that the Notes have not been and will not be registered under the Securities Act and have not been registered or qualified under any state securities or “Blue Sky” laws of the states of the United States and, accordingly, each of the Issuer, PTC and PT acknowledges that the Notes may not be offered or sold within the United States except in accordance with Rule 144A, outside the United States except in accordance with Regulation S, or otherwise pursuant to an exemption from the registration requirements of the Securities Act;
(e) that neither the Issuer, PTC, PT, any of their affiliates, nor any persons acting on any of their behalf (except Dealers) has engaged or will engage in any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Securities Act) in connection with any offer or sale of Notes in the United States;
(f) that, as of its Issue Date, no Note will be, and no securities of the same class (within the meaning of Rule 144A(d)(3)(i) under the Securities Act) as such Note will be, (i) listed on a national securities exchange in the United States which is registered under
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, 10.1 The Company represents and warrants to and undertakes to with the Dealers and each of them as followsUnderwriter in the following terms:
(a) that:
(i) its most recently published audited consolidated financial statements (10.1.1 the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case prepared in accordance with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed facts stated in the Base Prospectus, that there has been no change nor any development or event reasonably likely Recitals to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsthis Agreement are true and accurate in all material respects;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, 10.1.2 all statements of fact contained or to be contained in the Base Announcement, the Circular Documents and the Prospectus Documents are and will at the date of issue thereof be true and accurate in all material respects and not misleading in any material respect and all statements expressions of intentionopinion, opinion or intention and expectation contained in the Base Prospectus expressed therein are honestly and reasonably held will be fair and have been made after due and careful consideration, ;
10.1.3 there is will be no other fact information not disclosed in the Prospectus Documents or matter omitted from the Base Circular Documents and any announcement issued prior to the issuance of the Prospectus which Document (i) was the omission of which makes any statement therein misleading or which, in the context of the issue of the Rights Shares, might be material for disclosure therein or (ii) which is necessary information which is material to an investor and their investment advisers for making enable investors to make an informed assessment of its the activities, assets and liabilities, financial position, management, profits and losses and prospects, prospects of the Company and of the rights attaching to the Notes Rights Shares;
10.1.4 save as disclosed in the Audited Accounts, the audited consolidated balance sheet of the Group as at the Audited Accounts Date, the audited consolidated profit and loss account of the Group for the financial year ended on such date (including the notes thereto) were prepared in accordance with the applicable law and on a basis consistent with that adopted in preparing the audited accounts for the previous financial year, except the adoption of new and revised Hong Kong Financial Reporting Standard and such other change in accounting policy required by an accounting standard which came into effect after the year end date of the previous financial year, in accordance with accounting principles, standards and practices generally accepted in Hong Kong so as to give (except to the extent (if any) disclosed therein) a true and fair view of the state of affairs of the Group as at the relevant dates and the reasons profit or loss of the Group for the issuance relevant financial periods, and its impact there has been no material adverse change in the financial or trading position of the Group taken as a whole since the date to which the Audited Accounts were made up;
10.1.5 the returns for taxation purposes, which ought to have been made by or in respect of the companies in the Group in Hong Kong and any other part of the world, have been duly made and there are no circumstances known to any company in the Group or any of their respective directors, after making due and careful enquiry, which might be the occasion of any such dispute which is material and all such returns are in all material respects up to date, correct and on a proper basis and are not the Issuer or (ii) the omission subject of which made or makes any statement therein misleading in any material respectdispute with the relevant revenue or other appropriate authorities;
10.1.6 there are existing valid policies of insurance (dwhether directly procured by the Group or indirectly by the Group’s client or vendors) that against all liabilities, risks and losses against which it is a company normal or prudent to insure in respect of all major property and assets owned by and all businesses carried on by the companies in the Group and nothing has been done or has been omitted to be done whereby any of the said policies has or may become void or is likely to be avoided;
10.1.7 the statements, forecasts, estimates and expressions of opinion contained in the Announcement and to be contained in the Circular or the Prospectus have been and will at the respective dates of issue thereof be made after due and proper consideration, are and will at the respective dates of issue thereof be fair and honest and represent reasonable expectations based on facts known to the Company and/or the Directors or any of them;
10.1.8 all information necessary for the purpose of, or in the course of preparation of, the Announcement, the Circular and the Prospectus, and the replies to the Verification Notes, or which ought reasonably to have been disclosed or made available by the Company or the Directors was so disclosed or made available to its legal advisers (if any) fully, fairly and accurately and the replies to the Verification Notes (which will be prepared or approved by persons having appropriate knowledge and responsibility to enable them properly to provide such replies) given by the Company and the Directors will be true, accurate and complete in all material respects and will contain all material information and particulars with regard to the subject matter thereof;
10.1.9 each of the companies in the Group is duly incorporated in and validly existing under the law laws of its place of incorporation, incorporation and has full power and authority to conduct its business as described now carried on;
10.1.10 except as previously disclosed by the Company by way of public announcement or other public documents, neither the Company nor any of its subsidiaries is engaged in any litigation, arbitration, prosecution or other legal proceeding of material importance to the Group taken as a whole and which is material in the Base context of the Rights Issue nor is there any such proceeding pending or threatened against the Company or any of its subsidiaries, nor is there any claim or fact likely to give rise to any claim which in any such case may have or has had a significant effect on the financial position of the Group taken as a whole or which is material in the context of the Rights Issue;
10.1.11 except as previously disclosed by the Company by public announcement or other public documents, neither the Company nor any of its subsidiaries has entered into any contract or commitment of an unusual or onerous nature which, in the context of Rights Issue, might be material for disclosure;
10.1.12 except as previously disclosed by the Company by way of public announcement or other public documents, the Company and its subsidiaries has carried on its business in the ordinary and usual course and there has been no material adverse change in the financial or trading position of the Company or any of its subsidiaries which has not been fully and properly disclosed by the Company in the form of an announcement in accordance with the Listing Rules or otherwise as required by the Listing Rules;
10.1.13 except as previously disclosed by the Company by way of public announcement or other public documents, no order has been made and no resolution has been passed for the winding up of, or for a provisional liquidator to be appointed in respect of, the Company or any of its subsidiaries, and no petition has been presented and no meeting has been convened for the purpose of winding up any of the same; no receiver has been appointed in respect of the Company or any of its subsidiaries or all or any of its assets; none of the Company or any of its subsidiaries is insolvent, or unable to pay its debts within the meaning of section 178 of the Companies (WUMP) Ordinance, or has stopped paying its debts as they fall due; and no unsatisfied judgment which is material to the condition of the Company is outstanding against the Company or any of its subsidiaries;
10.1.14 the Circular and the Prospectus Documents will contain all particulars and information required by, and will be in accordance with the Companies (WUMP) Ordinance, the rules and regulations of the Stock Exchange and all other relevant Ordinances and governmental regulations in Hong Kong and shall not involve any breach of or default under any agreement, trust deed or instrument to execute which any member of the Group is a party;
10.1.15 all statements of fact contained in each announcement by the Company since the Audited Accounts Date were, when made, true and accurate in all material respects and not misleading and all statements of opinion, intention, and expectation expressed therein were, when made, fair and made after due and careful consideration and none of such statements were rendered materially untrue or misleading by the omission of any fact or matter;
10.1.16 except as previously disclosed by the Company by way of public announcement or other public documents, no material outstanding indebtedness or guarantee or indemnity of any liability of the Company or any of its subsidiaries has become payable by reason of default by the Company or any of its subsidiaries and no event has occurred or is pending which with the lapse of time or the fulfillment of any condition or the giving of notice or the compliance with any other formality may result in any such indebtedness or guarantee or indemnity of any liability becoming so payable;
10.1.17 the Company shall not from the date hereof until after the Latest Time for Acceptance issue any Shares or issue or grant any share options or other securities which may be convertible into or exchange for or carry rights to acquire Shares (other than the Rights Shares and Shares falling to be issued upon any exercise of the Share Options after the Record Date) which right is exercisable on or prior to the Record Date;
10.1.18 the Company has power under its memorandum of association and the bye-laws, has taken all necessary corporate or other action, and no other consents, actions, authorisations or approvals are necessary to enable or authorise it other than obtaining the consents and approvals referred to in Clauses 2.1:
(a) to issue and allot the Rights Shares required to be provisionally allotted pursuant to the terms of this Agreement in accordance with the Prospectus Documents without any sanction;
(b) to deal with the Rights Shares attributable to the Non-Qualifying Shareholders as may be specified in the Prospectus Documents;
(c) to enter into and perform its obligations under this Agreement and to make the Agreements and it is lawfully qualified to do business in those jurisdictions in which business is conducted by itRights Issue;
(e) that 10.1.19 the execution Rights Shares, when fully paid, shall be free from all liens, charges, encumbrances and delivery third party rights, interests or claims of any nature whatsoever and shall rank pari passu in all respects among themselves and with the Shares then in issue, including the right to receive all dividends and distributions which may be declared, made or paid on or after the date of issue of the Agreements have been duly authorised by it and Rights Shares;
10.1.20 the obligations of the Company under this Agreement constitute its legal, valid and legally binding obligations of the Company enforceable in accordance with their respective the terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability herein;
10.1.21 all written information relating to the Group supplied by the Company to the Underwriter for the purposes of the Underwriter’s review of the working capital projections of the Group is, or affecting creditors’ rights will be when so supplied, accurate in all material respects and to general equity principlesis not by itself or by omission misleading;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance 10.1.22 except with the Agency Agreementprior written consent of the Underwriter, the Company will constitute its valid and legally binding obligations enforceable not use the proceeds of the Rights Issue for any purpose except those as described in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlesthe Prospectus;
(g) that 10.1.23 the execution Company will have available and delivery sufficient authorised share capital to allot and issue the Right Shares after the increase of its authorised share capital from HK$80,000,000 divided into 3,200,000,000 Shares to HK$150,000,000 divided into 6,000,000,000 Shares; and
10.1.24 other than pursuant to the Rights Issue, the Company shall not, from the date hereof until completion of the AgreementsRights Issue, without the issueUnderwriter’s prior written consent issue any Shares or issue or grant any share options (including, offering and distribution for the avoidance of Notes when duly authorised and doubt, further options under the performance share option scheme of the terms of any Notes and the Agreements will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, its constitutive documents, or any indenture, trust deed, mortgage Company) or other agreement or instrument to which it is a party or by which it or any of its properties are boundsecurities convertible into, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed in the Base Prospectus, there are no pending actions, suits or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or other) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, exchangeable for or which are otherwise material in the context of an issue of Notes; and, carry rights to the best of its knowledge, no such actions, suits acquire Shares.
10.2 The Company undertakes to use all reasonable endeavours not to cause or proceedings are threatened or contemplated;
(i) that no consent, approval, authorisation, order, registration or qualification of or with permit any court or governmental agency or body is required and no other action or thing is required Specified Event to be taken, fulfilled or done for the issue of the Notes under the Programme or the consummation of the other transactions contemplated by the Agreements, except those which have already been obtained or which would not have a material adverse effect on the issue of the Notes under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (i) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period occur prior to the date hereofLatest Time for Termination, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for and, if this Agreement or any Subscription Agreement referred is not rescinded pursuant to herein;
(m) thatClause 12, neither it nor any of its affiliatesall such warranties, nor any persons (other than the relevant Dealer representations and undertakings as to which no representation is made) acting on behalf of any of them, has engaged or will engage are contained in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them have complied and will comply with the offering restrictions requirement of Regulation S and, where TEFRA D is indicated in the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer Clause 10.1 above shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 have been repeated as at the Agreement Date Latest Time for such Notes (any agreement on such Agreement Date being deemed Termination with reference to have been made on the basis of, facts and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notescircumstances then subsisting.
4.3 The Issuer 10.3 If any Specified Event shall occur or come to the knowledge of the Company prior to the Latest Time for Termination, it shall forthwith give notice to the Underwriter of the same.
10.4 Each of the Clauses 10.1.1 to 10.1.24 shall be deemed construed separately and independently and shall not be limited or restricted by reference to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amendedinference from any of them or other provisions of this Agreement.
4.4 10.5 The representations, warranties and undertakings contained in foregoing provisions of this clause shall Clauses 10 will continue in full force and effect notwithstanding the completion of the subscription and issue of any NotesRights Issue.
Appears in 1 contract
Samples: Underwriting Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 As at the date of this Agreement, the Issuer represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
(i) its the most recently published audited consolidated financial statements of the Issuer (the audited accounts); and
(ii) its the most recently published unaudited interim consolidated financial statementsstatements of the Issuer, were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in the Prospectus Regulation Kingdom of Norway (consistently applied and that they present fairly give a true and fair view of (i) its the consolidated financial condition of the Issuer as at the date to which they were prepared (the relevant date) and (ii) its the consolidated results of operations, cash flows and changes in shareholders’ equity operations of the Issuer for the financial period ended on the relevant date andand that there has been no material adverse change or any development involving a prospective material adverse change in the consolidated condition (financial or otherwise), results of operations, prospects or business affairs of the Issuer since the date of the last audited accounts except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may be, since the date of the audited accountsOffering Circular;
(b) its most recently published statutory that (parent onlyi) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law and, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus Offering Circular contains all material information with respect to itself the Issuer, the Group and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all (ii) the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements of fact contained made in the Base Prospectus are true and accurate Offering Circular, in all material respects and the light of the circumstances under which they were made, not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment of its the assets and liabilities, financial position, profits and losses and prospectsprospects of the Issuer, the Group, the rights attaching to the Notes to be issued under this Agreement and the reasons for the issuance and its impact on the Issuer or Issuer, (iiiii) the omission statements of which intention, opinion, belief or expectation contained in the Offering Circular are honestly and reasonably made or makes any statement therein misleading in any material respectheld and (iv) all reasonable enquiries have been made to ascertain such facts and to verify the accuracy of all such statements;
(c) that the Offering Circular contains all the information required by Article 6 of the Prospectus Regulation and also contains all the information required by Norwegian law and regulations and otherwise complies with such law and regulations to the extent applicable to the Programme and has been published as required by the Prospectus Regulation;
(d) that it is a company the Issuer and each of its subsidiaries (if any) has been duly incorporated and is validly existing in good standing under the law of its place jurisdiction of incorporation, and has incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus and Offering Circular and, in the case of the Issuer, to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that the Issuer (i) has all licences, permits, authorisations, consents, approvals, certificates, registrations and orders (Licences) and has made all necessary declarations and filings with all government agencies that are necessary to own or lease its properties and conduct its businesses as described in the Offering Circular and (ii) is conducting its business and operations in compliance with all applicable laws, regulations and guidelines;
(f) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar the laws of general applicability relating to or bankruptcy and other laws affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer is a party or by which the Issuer or its constitutive documentsproperty is bound;
(h) that no Event of Default or event which with the giving of notice or lapse of time or other condition might constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which might constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition might (after an issue of Notes) constitute such an Event of Default;
(i) that the Issuer (i) is not in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; (ii) is not engaged (whether as defendant or otherwise) in, nor has the Issuer knowledge of its properties are boundthe existence of, or infringe any existing applicable lawthreat of, ruleany legal, regulationarbitration, judgment, order or decree of any governmentadministrative, governmental body or court, domestic other proceedings the result of which might relate to claims or foreign, having jurisdiction over it or any of its properties;
(h) that except as disclosed amounts which might be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes under the Programme or proceedings against which might have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated financial or other) prospectscondition, results of operations, profitability or operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(iii) has not taken any action nor, to the best of its knowledgeknowledge or belief having made all reasonable enquiries, no such actions, suits have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(j) that (i) that no consentall required consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency authority have been given, fulfilled or body is required done and (ii) no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done done, by the Issuer for or in connection with (a) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (b) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(jk) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it each of the Issuer and its subsidiaries (if any) maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorisations; (ii) transactions are recorded as necessary to (A) permit preparation of financial statements in conformity with accounting rules and standards generally applicable in its jurisdiction of incorporation and/or with IFRS and (B) maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorisation; and (iv) each of the Issuer and its consolidated subsidiaries (if any) has not entered made and will not enter into kept books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of such entity and provide a sufficient basis for the preparation of the Issuer's consolidated financial statements in accordance with IFRS and neither the Issuer nor any contractual agreement of its subsidiaries (if any) has experienced any material difficulties with respect regard to the distribution of any Notes except for this Agreement or any Subscription Agreement referred (i) to herein(iv) above;
(m) that, that neither it the Issuer nor any of its subsidiaries (if any) nor, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of subsidiaries (if any) are currently subject to any sanctions administered by (i) the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), (ii) the U.S. State Department, (iii) HM Treasury, (iv) the United Nations Security Council or (v) the European Union;
(n) that neither the Issuer nor any of its subsidiaries (if any), nor any director, officer, agent, employee or other person associated with or acting on behalf of the Issuer or any of its Subsidiaries (if any), has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of any applicable anti- bribery or anti-corruption law or regulation enacted in any jurisdiction including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 or the UK Xxxxxxx Xxx 0000, or made, offered or promised to make, or authorised the payment or giving of any bribe, rebate, payoff, influence payment, facilitation payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable law or regulation;
(o) that the operations of the Issuer and its subsidiaries (if any) are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements and money laundering statutes in the Kingdom of Norway and of all jurisdictions in which the Issuer and its subsidiaries (if any) conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries (if any) with respect to Money Laundering Laws is pending and, to the best of the Issuer's knowledge, no such actions, suits or proceedings are threatened or contemplated;
(p) all returns, reports or filings which ought to have been made by or in respect of the Issuer for taxation purposes have been made and to the best of the Issuer's knowledge all such returns are up to date, correct and on a proper basis and are not the subject of any material dispute with the relevant revenue or other appropriate authorities and the Issuer is not aware of any present circumstances likely to give rise to any such material dispute. The Issuer reasonably believes that the provisions for income tax included in its financial statements have been calculated on a proper basis in respect of all accounting periods ended on or before the accounting reference date to which the financial statements relate for which the Issuer was then or might at any time thereafter become or have become liable. To date, the Issuer is not aware of any tax deficiency which has arisen or has been asserted against the Issuer that would be considered material in the context of the issue of the Notes;
(q) that it is not necessary under the laws of the Kingdom of Norway that any Noteholder, Dealer or Agent should be licensed, qualified or otherwise entitled to carry on business in the Kingdom of Norway (i) to enable any of them to enforce their respective rights under the Notes or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Notes;
(r) that, except as set forth in the Offering Circular, (i) all payments of principal, interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of the Kingdom of Norway will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of the Kingdom of Norway or any political subdivision or any authority thereof or therein having the power to tax and (ii) no stamp or other duty or similar tax is assessable or payable in, and no withholding or deduction for or on account of, any taxes, duties, assessments or governmental charges of whatever nature is required to be made by or within, the Kingdom of Norway or other sub-division of or authority therein or thereof having power to tax, in each case in connection with the authorisation, execution or delivery of the Agreements or with the authorisation, execution, issue or delivery of the Notes or the performance of the obligations of the Issuer under the Agreements and the Notes;
(s) that all Notes will, upon issue, constitute unconditional and unsubordinated obligations of the Issuer and rank pari passu with all other outstanding unsubordinated obligations of the Issuer that have been provided equivalent priority of claim to covered bonds (obligasjoner med fortrinnsrett) issued in accordance with the terms of the Norwegian legislative provisions contained in lov 10. april 2015 nr. 17 om finansforetak og finanskonsern (finansforetaksloven) and in forskrift 9. desember 2016 nr. 1502 om finansforetak og finanskonsern (finansforetaksforskriften);
(t) that none of the Issuer, its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nu) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; and
(v) that neither the Issuer nor its affiliates will during the restricted period, where TEFRA D is indicated in except to the applicable Final Terms, with the provisions of extent permitted under U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and (2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those representations, warranties and undertakings) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer represents(with respect to itself), warrants PT (with respect to itself and undertakes the Issuer) and PTC (with respect to itself and the Issuer) hereby represent, warrant and undertake to the Dealers and each of them as follows:
(a) that:
(i) its that the most recently published audited consolidated and unconsolidated financial statements (of the audited accounts); and
(ii) its Issuer, if any, the most recently published unaudited interim audited consolidated and unconsolidated financial statements, statements of PT and the most recently published audited financial statements of PTC were in each case prepared in accordance with the requirements of law and with accounting principles generally accepted in The Netherlands (in the Prospectus Regulation case of the Issuer) and in Portugal (in the case of PT and PTC) consistently applied and that they present fairly (i) its the consolidated and unconsolidated financial condition of the Issuer, PT or PTC, as the case may be, as at the date to which they were prepared (the "relevant date") and (ii) its the consolidated and unconsolidated results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that operations of the Issuer, PT or PTC, as the case may be, for the financial year ended on the relevant date and that there has been no change in the consolidated or unconsolidated condition (financial or otherwise) of the Issuer, PT or PTC since the date of the audited accounts;
(b) its most recently published statutory (parent only) financial statements are correct and complete (as the term is understood pursuant to article 958c of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law andrelevant date, except as disclosed in the Base ProspectusOffering Circular, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements Programme or the issue of fact contained in any Notes;
(b) that (i) the Base Prospectus are Offering Circular is true and accurate in all material respects and not there are no other facts in relation thereto, the omission of which would in the context of the issue of the relevant Notes and/or the Programme, as the case may be, make any statement in the Offering Circular misleading in any material respect and all (ii) the statements of intention, opinion opinion, belief or expectation contained in the Base Prospectus are Offering Circular, were honest and reasonable at the date made and are, except to an extent that is not material in the context of the Programme or the issue of any Notes, honestly and reasonably held held;
(c) that information contained in the Offering Circular complies with Section 80 of the FSMA and have been made after due and careful considerationin the case of listed Notes otherwise complies (which compliance shall be conclusively proved, there is no other fact or matter omitted from for the Base Prospectus which (i) was or is necessary information which is material to an investor and their investment advisers for making an informed assessment purposes of its assets and liabilities, financial position, profits and losses and prospects, the rights attaching admission to the Notes Official List, by the approval of the relevant authority or authorities) with the Listing Rules and also contains all the reasons for information required by Netherlands (in the issuance case of the Issuer) and its impact on Portuguese (in the Issuer or (iicase of PT and PTC) law and regulations and otherwise complies with such law and regulations to the omission of which made or makes any statement therein misleading in any material respectextent applicable to the Programme;
(d) that it the Issuer has been duly incorporated, has no subsidiaries and is a company duly incorporated and validly existing under Netherlands law (and the law laws of its place of incorporation, and has any other jurisdiction in which it carries on business) with full power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and to which it is lawfully qualified to do business in those jurisdictions in which business is conducted by ita party;
(e) that PT and each of its consolidated subsidiaries has been duly incorporated and is validly existing under the law of its incorporation with full power and authority to own, lease and operate its properties and conduct its business as described in the Offering Circular and to execute and perform its obligations under the Agreements to which it is a party;
(f) that creation of the Programme, the issue of Notes and the execution and delivery of the Agreements to which it is a party by each of the Issuer, PT and PTC have been duly authorised by the Issuer, PT and PTC and, in the case of Notes, upon due execution, issue and delivery in accordance with the Trust Deed and the Agency Agreement, will constitute, and, in the case of the Agreements to which it and constitute its is a party constitute, legal, valid and legally binding obligations of the Issuer, PT and PTC enforceable in accordance with their respective terms subject to bankruptcyapplicable laws, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar in particular laws of general applicability relating to or bankruptcy and other laws and equitable principles affecting creditors’ the rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlescreditors generally;
(g) that the execution and delivery of the AgreementsAgreements to which it is a party, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements to which it is a party will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer, PT or PTC to which their respective property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer, PT or PTC and will not result in a any breach of any of the terms or provisions of, or constitute a default under, any instrument, agreement or order to which the Issuer, PT or PTC is a party or by which the Issuer, PT or PTC or their respective property is bound;
(h) that no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(i) that none of the Issuer, PT or PTC (i) except when it would, individually and in the aggregate, not reasonably be expected to have a material adverse effect on the ability of the Issuer to perform its constitutive documentsobligations under the Notes or, in the case of the Issuer, PT and/or PTC, the Agreements, is in breach of the terms of, or in default under, any indentureinstrument, trust deed, mortgage or other agreement or instrument order to which it is a party or by which it or its property is bound and no event has occurred which with the giving of notice or lapse of time or other condition would constitute a default under any such instrument, agreement or order; or (ii) nor any member of its properties the Group is involved in any legal or arbitration proceeding (including any proceedings which are boundpending or threatened of which PT is aware) which may be reasonably expected to have or have had in the 12 months preceding the date of making this representation, a significant effect on the financial position of the Issuer, PT, PTC or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(h) that except the Group save as disclosed in the Base Prospectus, there are no pending actions, suits Offering Circular; or proceedings against or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have a material adverse effect on the condition (financial or otheriii) prospects, results or operations or general affairs viewed as a whole, or would materially and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; andhas taken any action nor, to the best of its knowledgetheir knowledge or belief having made all reasonable enquiries, no such actionshave any steps been taken or legal proceedings commenced for the winding up or dissolution of the Issuer, suits PT or proceedings are threatened or contemplatedPTC;
(ij) that (except for any required notifications to or filings with the Authority for the Financial Markets (Autoriteit Financiële Markten), the Dutch Central Bank and the Bank of England) no consentfurther consents, approvalapprovals, authorisationauthorisations, orderorders, registration filings, registrations or qualification qualifications of or with any court or governmental agency or body is authority are required and no other action actions or thing is things (including, without limitation, the payment of any stamp or other similar tax or duty) are required to be taken, fulfilled or done by the Issuer, PT or PTC for the validity of (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate the other transactions contemplated by the Agreements;
(j) that all corporate approvals and authorisations required by it for or in connection with (iii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained to which it is a party;
(k) that all necessary corporate approvals and are authorisations required by the Issuer, PT and PTC under Dutch and/or Portuguese law for or in full force and effect and connection with (iii) the execution, issue and offering of Notes under the Programme and compliance by it the Issuer with the terms of such any Notes willissued under the Programme and (ii) the execution and delivery of, on or before and compliance with the Issue Date of such Notesterms of, the Agreements to which it is a party have been obtained and will be are in full force and effect;
(k) that, in relation to each issue of Notes, neither it nor any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has is not entered and will not enter into necessary under the laws of The Netherlands or Portugal that any contractual agreement with respect Noteholder, Dealer or Agent or the Trustee should be licensed, qualified or otherwise entitled to carry on business in The Netherlands or Portugal (i) to enable any of them to enforce their respective rights under the Notes or the Agreements or (ii) solely by reason of the execution, delivery or performance of the Agreements or the Notes, save to the distribution extent of any Notes except for this Agreement the qualifications mentioned in the legal opinion of legal advisers as to matters of Dutch law or any Subscription Agreement Portuguese law, as the case may be, as referred to hereinin Appendix A or clause 3, whichever has most recently been furnished;
(m) that, neither except as set forth in the Offering Circular all payments of principal, premium (if any), interest and other amounts in respect of the Notes made to holders of the Notes who are non-residents of The Netherlands will be made without withholding for or deduction of any taxes or duties imposed or levied by or on behalf of The Netherlands or any political subdivision or any authority thereof or therein having the power to tax;
(n) that all Notes will, upon issue, be direct, unconditional, unsubordinated and (subject to the provisions of Condition 3) unsecured obligations of the Issuer and rank pari passu among themselves and (save for certain obligations required to be preferred by law) equally with all other unsecured obligations (other than subordinated obligations, if any) of the Issuer, from time to time outstanding;
(o) that in relation to each Tranche of Notes for which a Dealer is named as a Stabilising Manager in the applicable Pricing Supplement, it nor has not issued and will not issue, without the prior consent of that Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued; and
(p) that none of the Issuer, PT or PTC, any of its their affiliates, nor any persons acting on any of their behalf (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themDealers or Arrangers), has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and
(n) that it, any of its affiliates, Notes and each person (other than of the relevant Dealer as to which no representation is made) acting on behalf of any of them have foregoing persons has complied and will comply with the offering restrictions requirement requirements of Regulation S and, where TEFRA D is indicated in under the applicable Final Terms, with the provisions of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and Securities Act;
(2) With regard to each issue of Rule 144A Notes as at the Agreement Date for such Rule 144A Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, such representations, warranties and agreements) and as at the Issue Date of such Rule 144A Notes, the Issuer (with respect to itself), PTC (with respect to itself and the Issuer) and PT (with respect to itself and the Issuer), in addition to the representations and warranties contained in clause 4(1) above, shall be deemed to represent and warrant as follows:
(a) that the Offering Circular does not include any untrue statement of a material fact nor does it omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(b) that none of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes) will violate or U.S. Treas. Reg. § 1.163result in a violation of Section 7 of the Exchange Act or any regulation promulgated thereunder, including, without limitation, Regulations T, U or X of the Board of Governors of the United States Federal Reserve System;
(c) that neither the Issuer, PTC, PT, any of their affiliates, nor any persons acting on any of their behalf (except Dealers) has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, stabilisation in violation of applicable laws or manipulation of the price of any debt security of any of the Issuer, PT or PTC to facilitate the sale or resale of any Notes;
(d) that the Notes have not been and will not be registered under the Securities Act and have not been registered or qualified under any state securities or "Blue Sky" laws of the states of the United States and, accordingly, each of the Issuer, PTC and PT acknowledges that the Notes may not be offered or sold within the United States except in accordance with Rule 144A, outside the United States except in accordance with Regulation S, or otherwise pursuant to an exemption from the registration requirements of the Securities Act;
(e) that neither the Issuer, PTC, PT, any of their affiliates, nor any persons acting on any of their behalf (except Dealers) has engaged or will engage in any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Securities Act) in connection with any offer or sale of Notes in the United States;
(f) that, as of its Issue Date, no Note will be, and no securities of the same class (within the meaning of Rule 144A(d)(3)(i) under the Securities Act) as such Note will be, (i) listed on a national securities exchange in the United States which is registered under Section 6 of the Exchange Act or (ii) quoted in any "automated inter-5(c)(2)(i)(Cdealer quotation system" (as such term is used in the rules under the Exchange Act) in the United States;
(g) that the Notes and the Agreements conform in all material respects to the descriptions of them contained in the Offering Circular and it is not necessary in connection with the Programme to qualify an indenture in respect of the Notes under the United States Trust Indenture Act of 1939, as amended;
(h) that Notes issued by the Issuer will only be offered or sold by the Issuer, PTC or PT in the United States pursuant to private transactions to purchasers the Issuer, PTC or PT reasonably believe to be QIB's within the meaning of Rule 144A under the Securities Act in transactions that will meet the conditions for exemption from registration under such Rule 144A;
(i) that each of the Issuer, PTC and PT is not now, nor will it be as a result of the sale of any of Notes as contemplated herein, an "investment company", or a company "controlled" by an "investment company" registered or required to be registered under the Investment Company Act (as such terms are used in the Investment Company Act); and
(j) that neither the Issuer, PTC, PT, any of its affiliates, nor any persons acting on any of its behalf (except Dealers) has made or will make offers or sales of any securities under circumstances that would require the registration of any of the Notes under the Securities Act.
4.2 (3) With regard to each issue of Notes, each of the Issuer (as to itself), PT (as to itself and the Issuer) and PTC (as to itself and the Issuer) shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 The Issuer shall be deemed to repeat the representations, warranties and undertakings contained in subclause 4.1 on each date on which the Base Prospectus is revised, supplemented or amended.
4.4 The representations, warranties and undertakings contained in this clause shall continue in full force and effect notwithstanding the completion of the subscription and issue of any Notes.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. 4.1 (1) As at the date of this Agreement, the Issuer hereby represents, warrants and undertakes to the Dealers and each of them as follows:
(a) that:
that (i) the latest audited annual financial statements of the Issuer and its subsidiaries included in the Issuer's annual report on Form 10-K most recently published audited filed with the United States Securities and Exchange Commission (the "Commission") (the "FORM 10-K"), and incorporated by reference in the Offering Circular, present fairly the consolidated financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations for the periods specified and except as otherwise stated in the Form 10-K, such financial statements (the audited accounts); and
(ii) its most recently published unaudited interim consolidated financial statements, were in each case have been prepared in accordance conformity with the requirements of the Prospectus Regulation and that they present fairly (i) its consolidated financial condition as at the date to which they were prepared (the relevant date) United States generally accepted accounting principles applied on a consistent basis, and (ii) its results of operations, cash flows and changes in shareholders’ equity for the financial period ended on the relevant date and, except as disclosed in the Base Prospectus, that there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its consolidated condition (financial or other), prospects, results of operations, or general affairs, or that of the Issuer, as the case may beOffering Circular, since the date of such latest audited annual financial statements neither the audited accountsIssuer nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, nor entered into any material transactions not in the ordinary course of business and there has not been any material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(b) its most recently published statutory (parent only) financial that the Offering Circular does not contain an untrue statement of material fact or omit to state a material fact that is necessary in order to make the statements are correct and complete (as made in the term is understood pursuant to article 958c Offering Circular, in the light of the Swiss Code of Obligations) and have been prepared on a consistent basis in accordance with Swiss law andcircumstances under which they were made, except as disclosed in the Base Prospectus, since the date to which the most recent such accounts were prepared there has been no change nor any development or event reasonably likely to involve a prospective change which is materially adverse to its condition (financial or other), prospects, results of operations or general affairs;
(c) that the Base Prospectus contains all information with respect to itself and the Notes to be issued under this Agreement that is material in the context of the Notes to be issued under this Agreement, all statements of fact contained in the Base Prospectus are true and accurate in all material respects and not misleading in any material respect and all statements of intention, opinion or expectation contained in the Base Prospectus are honestly and reasonably held and have been made after due and careful consideration, there is no other fact or matter omitted from the Base Prospectus Offering Circular which (i) was or is necessary information which is material to an investor enable investors and their investment professional advisers for making to make an informed assessment of its the assets and liabilities, financial position, profits and losses and prospects, prospects of the Issuer and of the rights attaching to the Notes and the reasons for the issuance and its impact on the Issuer or (ii) the omission of which made or makes any statement therein misleading in any material respectNotes;
(dc) that it is a company the Issuer has been duly incorporated and is validly existing in good standing under the California law of its place of incorporation, and has with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Base Prospectus Offering Circular and to execute and perform its obligations under the Agreements and it is lawfully duly qualified to do conduct business as a foreign corporation in those jurisdictions each jurisdiction in which business such qualification is conducted by itrequired, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), business, prospects or results of operations of the Issuer and its subsidiaries considered as a whole;
(ed) that the issue of Notes and the execution and delivery of the Agreements by the Issuer have been duly authorised by it all corporate action on the part of the Issuer and, in the case of Notes, upon due execution, issue and constitute its delivery in accordance with the Agency Agreement, will constitute, and, in the case of the Agreements constitute, legal, valid and legally binding obligations of the Issuer enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre reorganisation and similar other laws of general applicability relating to or affecting creditors’ ' rights and to general equity principles;
(f) that Notes issued by it when duly authorised, executed, authenticated, issued and delivered in accordance with the Agency Agreement, will constitute its valid and legally binding obligations enforceable in accordance with their respective terms subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium, en désastre and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(ge) that the execution and delivery of the Agreements, the issue, offering and distribution of Notes when duly authorised and the performance of the terms of any Notes and the Agreements will not conflict with infringe any law, regulation, order, rule, decree or statute applicable to the Issuer or to which its property may be subject and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in a any breach of any of the terms or provisions of, or constitute a default under, its constitutive documentsany instrument, or any indenture, trust deed, mortgage or other agreement or instrument order to which it the Issuer is a party or by which it the Issuer or any of its properties are property is bound, or infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over it or any of its properties;
(hf) that except no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default;
(g) that the Issuer (i) is not engaged (whether as disclosed 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 is reasonably expected to result in claims or amounts which would be material in the Base Prospectus, there are no pending actions, suits context of the Programme and/or the issue and offering of Notes thereunder or proceedings against which would reasonably be expected to have or affecting it, which are reasonably likely to be determined adversely to it and if its determined would individually or in the aggregate have had a material adverse effect on the condition (consolidated or unconsolidated financial or other) prospectscondition, results or of operations or general affairs viewed as a whole, or would materially business of the Issuer and adversely affect its ability to perform its obligations under the Agreements, or which are otherwise material in the context of an issue of Notes; and(ii) has not taken any action nor, to the best of its knowledge, no such actions, suits knowledge have any steps been taken or legal proceedings are threatened commenced for the winding up or contemplateddissolution of the Issuer;
(ih) that no consent, approval, authorisation, order, filing, registration or qualification of or with any court or governmental agency or body authority is required and no other action or thing (including, without limitation, the payment of any stamp or other similar tax or duty) is required to be taken, fulfilled or done by the Issuer for or in connection with (i) the execution, issue and offering of the Notes under the Programme or the consummation of the other transactions contemplated and compliance by the Agreements, except those which have already been obtained or which would not have a material adverse effect on Issuer with the issue terms of the any Notes issued under the Programme or its ability to consummate (ii) the other transactions contemplated by execution and delivery of, and compliance with the terms of, the Agreements;
(ji) that all corporate approvals and authorisations required by it the Issuer for or in connection with (i) the execution, issue and offering of Notes under the Programme and compliance by the Issuer with the terms of any Notes issued under the Programme and (ii) the execution and delivery of, and compliance with the terms of, the Agreements have been obtained and are in full force and effect and (ii) the execution, issue and offering of Notes under the Programme and compliance by it with the terms of such Notes will, on or before the Issue Date of such Notes, have been obtained and will be in full force and effect;
(kj) thatthat none of the Issuer, in relation to each issue of Notes, neither it nor its affiliates and any persons acting on any of its affiliates (as defined in Rule 405 under the Securities Act), nor any person acting on behalf of any of them has, within six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act (Regulation S)) the Notes being issued or any security of the same class or series as the Notes being issued;
(l) that it has not entered and will not enter into any contractual agreement with respect to the distribution of any Notes except for this Agreement or any Subscription Agreement referred to herein;
(m) that, neither it nor any of its affiliates, nor any persons (other than the relevant Dealer as to which no representation is made) acting on behalf of any of themtheir behalf, has engaged or will engage in any directed selling efforts (as defined in Rule 902(c) under the Securities Act) with respect to the Notes; and;
(nk) that itthe Issuer, any of its affiliates, and each person (other than the relevant Dealer as to which no representation is made) acting on behalf of any of them their behalf have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(l) that the Issuer is a reporting issuer (within the meaning of Regulation S under the Securities Act);
(m) that since December 31, 1997 the Issuer has filed all reports and all proxy or information statements required to be filed with the Commission pursuant to Sections 13, 14 or 15(d) or the Exchange Act (the "EXCHANGE FILED INFORMATION"). Each such report and statement filed by the Issuer and incorporated by reference in the Offering Circular, when so filed, contained all material statements required to be included therein by, and conformed in all material respects to and was filed in compliance with, the requirements of the Exchange Act and the rules and regulations thereunder;
(n) that the Issuer is not now and, where TEFRA D as a result of the issue of any Notes, will not be an "INVESTMENT COMPANY" as defined in the United States Investment Company Act of 1940, as amended; and
(o) that in relation to each Tranche of Notes for which a Dealer is indicated named as a Stabilising Manager in the applicable Final TermsPricing Supplement, with it has not issued and will not issue, without the provisions prior consent of U.S. Treas. Reg. § 1.163-5(c)(2)(i)(D)(1) and that Dealer, any press or other public announcement referring to the proposed issue of Notes unless the announcement adequately discloses that stabilising action may take place in relation to the Notes to be issued.
(2) or U.S. Treas. Reg. § 1.163-5(c)(2)(i)(C).
4.2 With regard to each issue of Notes, the Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, those such representations, warranties and undertakingsagreements) and as at the Issue Date of such Notes.
4.3 (3) The Issuer shall be deemed to repeat the representations, warranties and undertakings agreements contained in subclause 4.1 (1) on each date on which the Base Prospectus Offering Circular is revised, supplemented or amendedamended and on each date on which the aggregate nominal amount of the Programme is increased in accordance with clause 12.
4.4 (4) The representations, warranties and undertakings agreements contained in this clause shall continue in full force and effect notwithstanding the actual or constructive knowledge of any Dealer with respect to any of the matters referred to in the representations and warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes.
Appears in 1 contract
Samples: Programme Agreement (International Lease Finance Corp)
