Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself that: 2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement. 2.2 Each Guarantor is a corporation, limited liability company or limited partnership, as applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement. 2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor and constitute legal, valid and binding obligations of the Issuer and each Guarantor enforceable against the Issuer and each Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). 2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). 2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor and constitute the legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). 2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended. 2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively. 2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes. 2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantor, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantor, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any Guarantor, any contract or instrument to which the Issuer or any Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any Guarantor is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the financial condition or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement. 2.10 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor threatened, against or affecting the Issuer or any Guarantor or any of its subsidiaries which might reasonably be expected to result in a material adverse change in the financial condition or operations of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement. 2.11 Neither the Issuer nor any Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. 2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer and, unless such Guarantor shall have been released from the Guarantee in accordance with its terms, each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the financial condition or operations of the Issuer and its subsidiaries taken as a whole which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
Appears in 3 contracts
Sources: Commercial Paper Dealer Agreement (Staples Inc), Commercial Paper Dealer Agreement (Staples Inc), Commercial Paper Dealer Agreement (Staples Inc)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself that:
2.1 The Issuer is a corporation company duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation incorporation, and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Such Guarantor is a corporationcompany duly incorporated, limited liability company or limited partnershipvalidly existing and, as to the extent applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation incorporation, and has all the requisite power and authority to execute, deliver and perform its obligations under the GuaranteeGuarantees, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each such Guarantor and constitute legal, valid and binding obligations of the Issuer and each such Guarantor enforceable against the Issuer and each such Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each such Guarantor and constitute constitutes the legal, valid and binding obligation of each such Guarantor enforceable against each Guarantor it in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereofthereof and Regulation D thereunder, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantorssuch Guarantor, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth Except as provided in Section 1 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes., provided that the Notes are not issued or registered in Bermuda or Ireland, as the case may be, and the register of holders of the Notes is not maintained in Bermuda or Ireland
2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantor, such Guarantor will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantorwhich would have a material adverse effect on such Guarantor and its subsidiaries, taken as a whole, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any such Guarantor, any contract or instrument to which the Issuer or any such Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any such Guarantor is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, or the ability of the Issuer or any such Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.10 Except Other than as disclosed set forth in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any such Guarantor threatened, against or affecting the Issuer or any such Guarantor or any of its subsidiaries which might reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, or the ability of the Issuer or any such Guarantor to perform its respective obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.11 Neither the Issuer nor any such Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless and such Guarantor shall have been released from the Guarantee in accordance with its terms, each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the such Guarantor set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, which has not been disclosed in the Company Information to the Dealer in writing and (iv) neither the Issuer nor any such Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.14 Under the laws of its jurisdiction of organization, neither the Issuer nor such Guarantor nor any of its revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of its jurisdiction of organization or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agency Agreement, the Notes or the Guarantee.
2.15 Each of the Issuer and the Bermuda Resident Guarantor is permitted to make all payments under this Agreement, the Issuing and Paying Agency Agreement, the Notes and the Guarantee, as applicable, to holders of the Notes that are non-residents of Bermuda and Ireland free and clear of and without deduction or withholding for or on account of any taxes or other governmental charges imposed by Bermuda or Ireland. Each of the Irish Resident Guarantors is permitted to make all payments under this Agreement, the Issuing and Paying Agency Agreement, the Notes and the Guarantee, as applicable, to Qualifying Noteholders, free and clear of and without deduction or withholding for or on account of any taxes or other governmental changes imposed by Bermuda or Ireland. There is no stamp or documentary tax or other charge imposed by any governmental agency having jurisdiction over the Issuer or such Guarantor in connection with the execution, delivery and issuance, of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or any Note.
2.16 The choice of New York law to govern this Agreement, the Issuing and Paying Agency Agreement, the Guarantee and the Notes is, under the laws of Bermuda or Ireland, as the case may be, a valid, effective and irrevocable choice of law, and the submission by the Issuer and such Guarantor in Section 7.3 (b) of the Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon the Issuer and such Guarantor under the laws of Bermuda or Ireland, as the case may be.
2.17 Any final judgment rendered by any court referred to in Section 2.16 in an action to enforce the obligations of the Issuer or such Guarantor under this Agreement, the Issuing and Paying Agency Agreement, the Notes or the Guarantee, as applicable, is capable of being enforced in the courts of Bermuda or Ireland, as the case may be.
2.18 As a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes in the courts of Bermuda or Ireland, as the case may be, it is not necessary that this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes be filed or recorded with any court or other authority.
Appears in 3 contracts
Sources: Commercial Paper Dealer Agreement (Ingersoll-Rand PLC), Commercial Paper Dealer Agreement (Ingersoll-Rand PLC), Commercial Paper Dealer Agreement (Ingersoll-Rand PLC)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Guarantor is a corporation, limited liability company or limited partnership, as applicablethe case may be, duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation organization and has all the requisite corporate, limited liability or partnership, as applicable, power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor and constitute legal, valid and binding obligations of the Issuer and each Guarantor enforceable against the Issuer and each Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor and constitute constitutes the legal, valid and binding obligation obligations of each Guarantor enforceable against each Guarantor in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantorseach Guarantor, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorthe Guarantors, will will
(i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantor, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any Guarantor, any contract or instrument to which the Issuer or any Guarantor is a party or by which it or its their property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any Guarantor is subject or by which it or its their property is bound, which breach or default might have a material adverse effect on the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any Guarantor or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.10 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor threatened, against or affecting the Issuer or any Guarantor or any of its their respective subsidiaries which might reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any Guarantor or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.11 Neither the Issuer nor any Guarantor of the Guarantors is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Neither the Issuer, any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director or officer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any Guarantor or any of their respective subsidiaries or affiliates (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that could result in a violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”) or the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) or similar law or regulation of any other relevant jurisdiction; and neither the Issuer, nor any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director or officer, any agent, employee, representative or affiliate or other person associated with or acting on behalf of the Issuer or any Guarantor or any of their respective subsidiaries or affiliates is aware of or has taken any action, directly or indirectly, that could result in a sanction for violation by such persons of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the FCPA or the Bribery Act or similar law or regulation of any other relevant jurisdiction; and the Issuer, each Guarantor, and their respective subsidiaries and, to the knowledge of the Issuer or such Guarantor, affiliates have each conducted their businesses in compliance with the FCPA, the Bribery Act and any applicable similar law or regulation and have instituted and maintain policies and procedures designed to ensure, and which are expected to continue to ensure, continued compliance therewith.
2.14 The operations of the Issuer, each Guarantor and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and the Guarantors and their respective subsidiaries conduct business, and the rules and regulations thereunder (collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, any Guarantor or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer any Guarantor, threatened.
2.15 Neither the Issuer, any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director or officer, any agent, employee, representative or affiliate of the Issuer or any Guarantor or any of their respective subsidiaries (i) is currently the subject of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by, or could result in the imposition of Sanctions against, any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise).
2.16 Neither the Issuer, any Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or any Guarantor, any director or officer, any agent, employee, representative or affiliate of the Issuer or any Guarantor or any of their respective subsidiaries, is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
2.17 Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer, any Guarantor nor any of their respective subsidiaries or, to the knowledge of the Issuer or such Guarantor, affiliates has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any Guarantor or any of their respective subsidiaries or, to the knowledge of the Issuer or such Guarantor, affiliates have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries.
2.18 Each Guarantor will receive financial benefits by the issuance of the Notes by the Issuer and such Guarantor's issuance of the Guarantee in respect of the Notes.
2.19 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless such Guarantor shall have been released from and the Guarantee in accordance with its terms, each Guarantor Guarantors to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor Guarantors set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any Guarantor which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Columbia Pipeline Group, Inc.)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor the Guarantors, as applicable, represents and warrants as to itself that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Guarantor of the Guarantors is a corporation, corporation or limited liability company or limited partnershipcompany, as applicable, duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor the Guarantors and constitute legal, valid and binding obligations of the Issuer and each Guarantor the Guarantors enforceable against the Issuer and each Guarantor the Guarantors in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorizedauthorized and, and when the Notes have been issued and delivered as provided in the Issuing and Paying Agency Agent Agreement, will be duly executed and delivered by each Guarantor the Guarantors and constitute constitutes the legal, valid and binding obligation of each Guarantor the Guarantors enforceable against each Guarantor the Guarantors in accordance with its terms subject to applicable bankruptcy, insolvency or insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the issuance of the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorthe Guarantors, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any either Guarantor, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any either Guarantor, any contract or instrument to which the Issuer or any either Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any either Guarantor is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the condition (financial condition or otherwise) or operations of the Issuer and its subsidiaries the Guarantors, taken as a whole whole, or that would affect the ability of the Issuer or any either Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.10 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any either Guarantor threatened, against or affecting the Issuer or any either Guarantor or any of its their respective subsidiaries which might would reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise) or operations of the Issuer and its subsidiaries the Guarantors, taken as a whole whole, or the ability of the Issuer or any either Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.11 Neither the Issuer nor any either Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum (excluding Dealer Information) nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Neither the Issuer, either Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or either Guarantor, any director, officer, agent, employee or affiliate of the Issuer, either Guarantor or any of their respective subsidiaries is aware of, or has taken any action, directly or indirectly, that would result in, a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the Bribery Act of 2010 of the United Kingdom (as amended, and the rules and regulations thereunder, the “UK Bribery Act”) or any other applicable anti-bribery or anti-corruption law, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the UK Bribery Act or any other applicable anti-bribery or anti-corruption law and the Issuer, its subsidiaries and, to the knowledge of the Issuer and the Guarantors, their respective affiliates, have conducted their businesses in compliance with the FCPA, the UK Bribery Act, and other applicable anti-bribery and anti-corruption laws and have instituted and maintain policies and procedures designed to ensure continued compliance therewith.
2.14 The operations of the Issuer, the Guarantors and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, either Guarantor or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer and the Guarantors, threatened.
2.15 Neither the Issuer, either Guarantor nor any of their respective subsidiaries nor, to the knowledge of the Issuer or either Guarantor, any director, officer, agent, employee, affiliate or representative of the Issuer, either Guarantor or any of their respective subsidiaries, is currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the Bureau of Industry and Security of the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer, either Guarantor or any of their respective subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions; and none of the Issuer, either Guarantor or any of their respective subsidiaries will , directly or indirectly, use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
2.16 Each Guarantor will receive financial benefits from the issuance of the Notes by the Issuer and the issuance by such Guarantor of the Guarantee in respect of the Notes.
2.17 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer andand the Guarantors, unless such Guarantor shall have been released from the Guarantee in accordance with its termsas applicable, each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor Guarantors set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date date, when issued and delivered as provided in the Issuing and Paying Agency Agreement, have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise) or operations of the Issuer and its subsidiaries or the Guarantors, taken as a whole whole, that would affect the ability of the Issuer or either Guarantor to perform their respective obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any either Guarantor is in default of any of its their respective obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer The Issuer, with respect to Sections 2.1 through 2.10 and 2.20, and each Guarantor Guarantor, for itself only, with respect to Sections 2.11 through 2.20, represents and warrants as to itself that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Guarantor is a corporation, limited liability company or limited partnership, as applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor and constitute legal, valid and binding obligations of the Issuer and each Guarantor enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and each similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.3 The Notes have been duly authorized, and when issued and delivered as provided in the Issuing and Paying Agency Agreement, will be validly issued and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not require registration of the Notes under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.7 None of the execution and delivery of this Agreement and the Issuing and Paying Agency Agreement, the issuance and delivery of the Notes in accordance with the Issuing and Paying Agency Agreement, or the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or (ii) violate or result in a breach or an event of default under any of the terms of the Issuer’s charter documents or by-laws, any material contract or instrument to which the Issuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer is subject or by which it or its property is bound, which violation, breach or event of default is reasonably likely to have a material adverse effect on the business, operations or financial condition of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer threatened, against or affecting the Issuer or any of its subsidiaries which is reasonably likely to result in a material adverse change in the business, operations or financial condition of the Issuer and its subsidiaries taken as a whole or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information (excluding Dealer Information) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.11 Such Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all the requisite power and authority to execute, deliver and perform its obligations under its Guarantee, this Agreement and, in the case of the Note Guarantor, the Issuing and Paying Agency Agreement.
2.12 This Agreement, the Guarantee of such Guarantor and, in the case of the Note Guarantor, the Issuing and Paying Agency Agreement, have been duly authorized, executed and delivered by such Guarantor party thereto, and constitute legal, valid and binding obligations of such Guarantor, enforceable against such Guarantor party thereto in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)) and except as enforceability of the indemnification provisions of this Agreement may be limited by federal securities laws.
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor and constitute the legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no 2.13 No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the NotesGuarantees or, in the Guarantee or case of the Note Guarantor, the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 2.14 Neither the execution and delivery by such Guarantor of this Agreement, the Guarantee and Guarantees and, in the Issuing and Paying Agency Agreement, nor the issuance case of the Notes in accordance with Note Guarantor, the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorsuch Guarantor party thereto, as applicable, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the respective properties or assets of the Issuer or any Guarantor, such Guarantor or (ii) violate or result in a breach or a an event of default under any of the terms of the charter documents or by-laws of the Issuer or any such Guarantor’s formation documents, any material contract or instrument to which the Issuer or any such Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any such Guarantor is subject or by which it or its property is bound, which violation, breach or event of default might is reasonably likely to have a material adverse effect on the financial condition or operations of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, or the ability of the Issuer or any such Guarantor to perform its obligations under this Agreement, its respective Guarantee or, in the Notescase of the Note Guarantor, the Guarantee or the Issuing and Paying Agency Agreement.
2.10 Except as disclosed in the Company Information, there 2.15 Such Guarantor’s Guarantee will rank at least pari passu with all other senior unsecured debt of such Guarantor.
2.16 There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any such Guarantor threatened, against or affecting the Issuer or any such Guarantor or any of its subsidiaries which might is reasonably be expected likely to result in a material adverse change in the financial condition or operations of the Issuer such Guarantor and its subsidiaries taken as a whole or the ability of the Issuer or any such Guarantor to perform its obligations under this Agreement, its Guarantee or, in the Notescase of the Note Guarantor, the Guarantee or the Issuing and Paying Agency Agreement.
2.11 Neither the Issuer nor any 2.17 Such Guarantor is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company 2.18 The Guarantor Information contains does not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 2.19 The issuance of the Guarantees in the manner contemplated hereby does not require registration under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereof, and no indenture in respect of the Guarantees is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.20 Each (a) issuance of Notes by the Issuer hereunder and (b) each amendment or supplement of to the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer andand each Guarantor, unless such Guarantor shall have been released from the Guarantee in accordance with its termsas applicable, each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the such Guarantor set forth above in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, date and (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the business, operations or financial condition or operations of the Issuer or such Guarantor and its subsidiaries respective subsidiaries, taken as a whole whole, which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency AgreementDealer.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Time Warner Inc.)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself that:
2.1 The Issuer is a corporation company duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation incorporation, and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Such Guarantor is a corporationcompany duly incorporated, limited liability company or limited partnershipvalidly existing and, as to the extent applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation incorporation, and has all the requisite power and authority to execute, deliver and perform its obligations under the GuaranteeGuarantees, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each such Guarantor and constitute legal, valid and binding obligations of the Issuer and each such Guarantor enforceable against the Issuer and each such Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each such Guarantor and constitute constitutes the legal, valid and binding obligation of each such Guarantor enforceable against each Guarantor it in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(2) thereofthereof and Regulation D thereunder, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantorssuch Guarantor, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth Except as provided in Section 1 1.6(j) hereof, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, provided that the Notes are not issued or registered in Bermuda or Ireland, as the case may be, and the register of holders of the Notes is not maintained in Bermuda or Ireland.
2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantor, such Guarantor will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantorwhich would have a material adverse effect on such Guarantor and its subsidiaries, taken as a whole, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any such Guarantor, any contract or instrument to which the Issuer or any such Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any such Guarantor is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, or the ability of the Issuer or any such Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.10 Except Other than as disclosed set forth in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any such Guarantor threatened, against or affecting the Issuer or any such Guarantor or any of its subsidiaries which might reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, or the ability of the Issuer or any such Guarantor to perform its respective obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.11 Neither the Issuer nor any such Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless and such Guarantor shall have been released from the Guarantee in accordance with its terms, each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the such Guarantor set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer such Guarantor and its subsidiaries subsidiaries, taken as a whole whole, which has not been disclosed in the Company Information to the Dealer in writing and (iv) neither the Issuer nor any such Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.14 Under the laws of its jurisdiction of organization, neither the Issuer nor such Guarantor nor any of its revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of its jurisdiction of organization or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agency Agreement, the Notes or the Guarantee.
2.15 Each of the Issuer and the Bermuda Resident Guarantor is permitted to make all payments under this Agreement, the Issuing and Paying Agency Agreement, the Notes and the Guarantee, as applicable, to holders of the Notes that are non-residents of Bermuda and Ireland free and clear of and without deduction or withholding for or on account of any taxes or other governmental charges imposed by Bermuda or Ireland. Each of the Irish Resident Guarantors is permitted to make all payments under this Agreement, the Issuing and Paying Agency Agreement, the Notes and the Guarantee, as applicable, to Qualifying Noteholders, free and clear of and without deduction or withholding for or on account of any taxes or other governmental changes imposed by Bermuda or Ireland. There is no stamp or documentary tax or other charge imposed by any governmental agency having jurisdiction over the Issuer or such Guarantor in connection with the execution, delivery and issuance, of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or any Note.
2.16 The choice of New York law to govern this Agreement, the Issuing and Paying Agency Agreement, the Guarantee and the Notes is, under the laws of Bermuda or Ireland, as the case may be, a valid, effective and irrevocable choice of law, and the submission by the Issuer and such Guarantor in Section 7.3 (b) of the Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon the Issuer and such Guarantor under the laws of Bermuda or Ireland, as the case may be.
2.17 Any final judgment rendered by any court referred to in Section 2.16 in an action to enforce the obligations of the Issuer or such Guarantor under this Agreement, the Issuing and Paying Agency Agreement, the Notes or the Guarantee, as applicable, is capable of being enforced in the courts of Bermuda or Ireland, as the case may be.
2.18 As a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes in the courts of Bermuda or Ireland, as the case may be, it is not necessary that this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes be filed or recorded with any court or other authority.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Ingersoll-Rand PLC)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself that:
2.1 The Issuer is a corporation company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agreement.
2.2 Each Guarantor is a corporation, limited liability company or limited partnershipa corporation, as applicable, duly organized and organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). This Agreement has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligation of each Guarantor enforceable against the Issuer and each Guarantor in accordance with their its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor and constitute constitutes the legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof1, the offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantorseach Guarantor, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof1, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee and the Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorthe Guarantors, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantorthe Guarantors, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any Guarantorthe Guarantors, any contract or instrument to which the Issuer or any a Guarantor is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any a Guarantor is subject or by which it or its property is bound, which breach breach, violation or default might could reasonably be expected to have a material adverse effect on the condition (financial condition or otherwise), operations or business of the Issuer and its subsidiaries subsidiaries, taken as a whole whole, or any Guarantor and its subsidiaries, taken as a whole, or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.10 Except as disclosed in the Company Information, there There is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor threatened, against or affecting the Issuer or any Guarantor or any of its their subsidiaries which might could reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business of the Issuer and its subsidiaries subsidiaries, taken as a whole whole, or any Guarantor and its subsidiaries, taken as a whole, or the ability of the Issuer or any Guarantor to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agreement, as applicable.
2.11 Neither the Issuer nor any Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty as to the Dealer Information.
2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless such Guarantor shall have been released from the Guarantee in accordance with its terms, and each Guarantor to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor Guarantors set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement MemorandumMemorandum (as most recently amended or supplemented, including by incorporation of Company Information therein), there has been no material adverse change in the condition (financial condition or otherwise), operations or business of the Issuer and its subsidiaries taken as a whole whole, or the Guarantors and their respective subsidiaries taken as a whole, which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor is in default of any of its obligations hereunder or under the Notes, the Guarantee or the Issuing and Paying Agency Agreement.
2.14 Under the laws of the Cayman Islands, neither the Issuer or NHIL (collectively, the “Cayman Entities”) nor any of their revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of the Cayman Islands or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes.
2.15 Each of the Cayman Entities is permitted to make all payments under this Agreement, the Issuing and Paying Agency Agreement, the Guarantee and the Notes to holders of the Notes that are non-residents of the Cayman Islands, free and clear of and without deduction or withholding for or on account of any taxes or other governmental charges imposed by the Cayman Islands. There is no stamp or documentary tax or other charge imposed by the Cayman Islands in connection with the execution, delivery, issuance, payment, performance, enforcement or introduction into evidence in a court of the Cayman Islands of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or any Note.
2.16 The choice of New York law to govern this Agreement, the Issuing and Paying Agency Agreement, the Guarantee and the Notes is, under the laws of the Cayman Islands, a valid, effective and irrevocable choice of law, and the submission by each of the Cayman Entities in Section 7.3 (b) of the Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon the Cayman Entities under the laws of the Cayman Islands.
2.17 Any final judgment rendered by any court referred to in Section 2.16 in an action to enforce the obligations of a Cayman Entity under this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes is capable of being enforced in the courts of the Cayman Islands.
2.18 As a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes in the courts of the Cayman Islands, it is not necessary that this Agreement, the Issuing and Paying Agency Agreement, the Guarantee or the Notes be filed or recorded with any court or other authority.
2.19 Each Guarantor will receive financial benefits by the issuance of the Notes by the Issuer and such Guarantor’s issuance of the Guarantee in respect of the Notes.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Noble Corp / Switzerland)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself (and, in the case of a Guarantor, each other Guarantor which is a subsidiary of such first Guarantor) that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 Each Guarantor of the Guarantors is a corporation, unlimited liability corporation, limited liability company or limited partnershipliability partnership duly organized, as applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation formation, as applicable, and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, this Agreement and the Issuing and Paying Agency Agent Agreement and this Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor the Guarantors, as applicable, and constitute legal, valid and binding obligations of the Issuer and each Guarantor Guarantors, as applicable, enforceable against the Issuer and each Guarantor Guarantors, as applicable, in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor the Guarantors and constitute constitutes the legal, valid and binding obligation of each Guarantor the Guarantors enforceable against each Guarantor the Guarantors in accordance with its terms subject to applicable bankruptcy, insolvency or insolvency, and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee Guarantee, and the Issuing and Paying Agency Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorthe Guarantors, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantorof the Guarantors, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any Guarantorof the Guarantors, any contract or instrument to which the Issuer or any Guarantor of the Guarantors is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any Guarantor of the Guarantors is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any of the Guarantors or the ability of the Issuer or any Guarantor of the Guarantors to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement.
2.10 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor the Guarantors threatened, against or affecting the Issuer or any Guarantor of the Guarantors or any of its subsidiaries which might would reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any of the Guarantors or the ability of the Issuer or any Guarantor of the Guarantors to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement.
2.11 Neither the Issuer nor any Guarantor of the Guarantors is an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless such Guarantor shall have been released from and the Guarantee in accordance with its terms, each Guarantor Guarantors to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor Guarantors set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or the Guarantors which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor of the Guarantors is in default of any of its obligations hereunder hereunder, under the Notes, under the Guarantee or under the NotesIssuing and Paying Agent Agreement.
2.14 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, under the laws of the jurisdiction of its organization, neither such Guarantor nor any such subsidiary Guarantor nor any of its revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of the jurisdiction of its organization or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agent Agreement, the Guarantee or the Notes.
2.16 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, the choice of New York law to govern this Agreement, the Issuing and Paying Agency Agent Agreement, the Guarantee and the Notes is, under the laws of the jurisdiction of its organization, a valid, effective and irrevocable choice of law, and the submission by such Guarantor and any such subsidiary Guarantor in Section 7.3(b) of this Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon such Guarantor and any such subsidiary Guarantor under the laws of the jurisdiction of its organization.
2.17 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, any final judgment rendered by a competent court of the United States or the State of New York in an action to enforce the obligations of such Guarantor or any such subsidiary Guarantor under this Agreement, the Issuing and Paying Agent Agreement, the Guarantee or the Notes is capable of being enforced in the courts of the jurisdiction of its organization.
2.18 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, as a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agent Agreement, the Guarantee or the Notes in the courts of the jurisdiction of its organization, it is not necessary that this Agreement, the Issuing and Paying Agent Agreement, the Guarantee or the Notes be filed or recorded with any court or other authority. All documentary evidence to be submitted to a court in the jurisdiction of its organization must be in, or translated into, the language of the jurisdiction of its organization and certified by a duly qualified official translator in the jurisdiction of its organization.
2.19 Each Guarantor will receive financial benefits by the issuance of the Notes by the Issuer and such Guarantor’s issuance of the Guarantee in respect of the Notes.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Molson Coors Brewing Co)
Representations and Warranties of the Issuer and the Guarantors. Each of the Issuer and each Guarantor represents and warrants as to itself (and, in the case of a Guarantor, each other Guarantor which is a subsidiary of such first Guarantor) that:
2.1 The Issuer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the requisite power and authority to execute, deliver and perform its obligations under the Notes, this Agreement and the Issuing and Paying Agency Agent Agreement.
2.2 Each Guarantor of the Guarantors is a corporation, corporation or limited liability company or limited partnershippartnership duly organized, as applicable, duly organized and validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation formation, as applicable, and has all the requisite power and authority to execute, deliver and perform its obligations under the Guarantee, Guarantee and this Agreement and the Issuing and Paying Agency Agreement.
2.3 This Agreement and the Issuing and Paying Agency Agent Agreement have been duly authorized, executed and delivered by the Issuer and each Guarantor the Guarantors, as applicable, and constitute legal, valid and binding obligations of the Issuer and each Guarantor Guarantors, as applicable, enforceable against the Issuer and each Guarantor Guarantors, as applicable, in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agency Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, terms subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, and when the Notes have been issued as provided in the Issuing and Paying Agency Agreement, will be duly executed and delivered by each Guarantor the Guarantors and constitute the legal, valid and binding obligation of each Guarantor the Guarantors enforceable against each Guarantor the Guarantors in accordance with its terms subject to applicable bankruptcy, insolvency insolvency, or similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, the The offer and sale of the Notes and the Guarantee in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(24(a)(2) thereof, and no indenture in respect of the Notes or the Guarantee is required to be qualified under the Trust Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer and the Guarantors, respectively.
2.8 Assuming compliance by the Dealer with the procedures applicable to it set forth in Section 1 hereof, no No consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement, except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee Guarantee, and the Issuing and Paying Agency Agent Agreement, nor the issuance of the Notes in accordance with the Issuing and Paying Agency Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or any Guarantorthe Guarantors, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer or any Guarantorof the Guarantors, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or any Guarantorof the Guarantors, any contract or instrument to which the Issuer or any Guarantor of the Guarantors is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or any Guarantor of the Guarantors is subject or by which it or its property is bound, which breach or default might would reasonably be expected to have a material adverse effect on the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any of the Guarantors or the ability of the Issuer or any Guarantor of the Guarantors to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement.
2.10 Except as disclosed in the Company Information, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer or any Guarantor the Guarantors threatened, against or affecting the Issuer or any Guarantor of the Guarantors or any of its subsidiaries which might would reasonably be expected to result in a material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or any of the Guarantors or the ability of the Issuer or any Guarantor of the Guarantors to perform its obligations under this Agreement, the Notes, the Guarantee or the Issuing and Paying Agency Agent Agreement.
2.11 Neither the Issuer nor any Guarantor of the Guarantors is an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
2.12 Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by each of the Issuer and, unless such Guarantor shall have been released from and the Guarantee in accordance with its terms, each Guarantor Guarantors to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer and the Guarantor Guarantors set forth in this Section 2 remain true and correct in all material respects on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and, unless the Guarantors shall have been released from the Guarantee in accordance with its terms, and are guaranteed pursuant to the Guarantee, (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum, there has been no material adverse change in the condition (financial condition or otherwise), operations or business prospects of the Issuer and its subsidiaries taken as a whole or the Guarantors which has not been disclosed to the Dealer in writing and (iv) neither the Issuer nor any Guarantor of the Guarantors is in default of any of its obligations hereunder hereunder, under the Notes, under the Guarantee or under the NotesIssuing and Paying Agent Agreement.
2.14 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, under the laws of the jurisdiction of its organization, neither such Guarantor or any such subsidiary Guarantor nor any of its revenues, assets or properties has any right of immunity from service of process or from the jurisdiction of competent courts of the jurisdiction of its organization or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agent Agreement or the Guarantee.
2.16 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, the choice of New York law to govern this Agreement, the Issuing and Paying Agent Agreement, the Guarantee and the Notes is, under the laws of the jurisdiction of its organization, a valid, effective and irrevocable choice of law, and the submission by such Guarantor and any such subsidiary Guarantor in Section 7.3 of this Agreement to the jurisdiction of the courts of the United States District Court and the State of New York located in the Borough of Manhattan is valid and binding upon such Guarantor and any such subsidiary Guarantor under the laws of the jurisdiction of its organization.
2.17 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, any final judgment rendered by a competent court of the United States or the State of New York in an action to enforce the obligations of such Guarantor or any such subsidiary Guarantor under this Agreement, the Issuing and Paying Agent Agreement or the Guarantee is capable of being enforced in the courts of the jurisdiction of its organization.
2.18 To the extent that such Guarantor or any subsidiary Guarantor is organized outside of the United States, as a condition to the admissibility in evidence of this Agreement, the Issuing and Paying Agent Agreement, the Guarantee or the Notes in the courts of the jurisdiction of its organization, it is not necessary that this Agreement, the Issuing and Paying Agency Agent Agreement, the Guarantee or the Notes be filed or recorded with any court or other authority. All documentary evidence to be submitted to a court in the jurisdiction of its organization must be in, or translated into, the language of the jurisdiction of its organization and certified by a duly qualified official translator in the jurisdiction of its organization.
2.19 Each Guarantor will receive financial benefits by the issuance of the Notes by the Issuer and such Guarantor’s issuance of the Guarantee in respect of the Notes.
Appears in 1 contract
Sources: Commercial Paper Dealer Agreement (Molson Coors Brewing Co)