GIS » Topics » 8.2 Representations and Warranties.

This excerpt taken from the GIS 8-K filed Apr 10, 2007.

Section 1.  Representations and Warranties of the Company.

The Company hereby represents, warrants and covenants to the Initial Purchaser as follows:

(a)  No Registration.  Assuming the accuracy of the representations and warranties of the Initial Purchaser contained in Section 6 and its compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Notes to the Initial Purchaser, the offer, resale and delivery of the Notes by the Initial Purchaser and the conversion of the Notes into cash and Conversion Shares, if any, in each case in the manner contemplated by this Agreement, the Indenture, the Disclosure Package (as defined below) and the Final Offering Memorandum, to register the Notes or the Conversion Shares under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

(b)  No Integration.  None of the Company or any of its subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the Notes or the Conversion Shares in a manner that would require registration under the Securities Act of the Notes or the Conversion Shares.

(c)  Rule 144A.  No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Notes are listed on any national securities exchange registered under Section 6 of the Exchange Act, or quoted on an automated inter-dealer quotation system.

(d)  Exclusive Agreement.  The Company has not paid or agreed to pay to any person any compensation for soliciting another person to purchase any Notes or Conversion Shares, or securities similar to the Notes of the Company (except as permitted in this Agreement).

This excerpt taken from the GIS 8-K filed Oct 17, 2006.
Representations and Warranties.

(a) Assignor. The Assignor represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power

 

_________________________

Amount should combine principal together with accrued interest and breakage compensation, if any, to be paid by the Assignee, net of any portion of any upfront fee to be paid by the Assignor to the Assignee. It may be preferable in an appropriate case to specify these amounts generically or by formula rather than as a fixed sum.

Delete if consent is not required.

Delete if execution and delivery of a Note is not required.

 

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and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby.

(b) Assignee. The Assignee represents and warrants that (i) it has full power and authority and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement and (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement.

(c) Limitation. The Assignor makes no representation or warranty in connection with, and shall have no responsibility with respect to, the solvency, financial condition or statements of the Company, or the validity and enforceability of the Company’s obligations under the Credit Agreement or any Note. The Assignee acknowledges that it has, independently and without reliance on the Assignor, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and will continue to be responsible for making its own independent appraisal of the business, affairs and financial condition of the Company.

SECTION 7.

This excerpt taken from the GIS 10-Q filed Jan 6, 2005.

        8.2     Representations and Warranties.

        (a)    Due Formation or Incorporation; Authorization of Agreement.   Each Member hereby represents and warrants that such Member is a corporation, Delaware business trust (in the case of Capital Trust) or limited liability company duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization and has the organizational power and authority to own its property and carry on its business as owned and carried on as of the date hereof and, with respect to each Member other than GM Class B, as of May 24, 2002. Each Member hereby represents and warrants that such Member is duly licensed or qualified to do business and is in good standing in each of the jurisdictions in which the failure to be so licensed or qualified, either individually or in the aggregate with all other Immateriality Exceptions, has or could reasonably be expected to have, a Material Adverse Effect. Each Member hereby represents and warrants that such Member has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. Each Member hereby represents and warrants that the execution, delivery, and performance by such Member of this Agreement have been duly authorized by all necessary organizational action. Each Member hereby represents and warrants that this Agreement constitutes the legal, valid, and binding obligation of such Member and is enforceable against such Member in accordance with its terms (except to the extent that enforcement is affected by laws pertaining to bankruptcy, reorganization, insolvency, and creditors’ rights and by the availability of injunctive relief, specific performance, and other equitable remedies).

        (b)    No Conflict with Restrictions; No Default.   Each Member hereby represents and warrants that neither the execution and delivery by each Member of this Agreement nor such



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Member’s performance and compliance with the terms and provisions hereof, (i) will conflict with, violate or result in a breach of any of the terms, covenants, conditions, or provisions of any law or governmental regulation in effect on the date hereof applicable to, or any order, writ, injunction, decree, determination or award of any court, governmental department, board, agency or instrumentality, domestic or foreign, or arbitrator directed to or binding on such Member or any of its Material Subsidiaries which conflict, violation, or breach, either individually or in the aggregate with all other Immateriality Exceptions, has or could reasonably be expected to have, a Material Adverse Effect, (ii) will conflict with, violate, result in a breach of, or constitute a default under any agreement or instrument to which such Member is a party or by which such Member is or may be bound or to which any of its properties or assets is subject which conflict, violation, breach or default, either individually or in the aggregate with all other Materiality Exceptions, has or could reasonably be expected to have, a Material Adverse Effect, or any of the terms or provisions of the limited liability company agreement, certificate of incorporation or bylaws of such Member or any of its Material Subsidiaries, (iii) will conflict with, violate, result in a breach of, constitute a default under (whether with notice or lapse of time or both), accelerate or permit the acceleration of the performance required by, or require any consent, authorization, or approval under any of the terms or provisions of any material indenture, mortgage, lease, agreement, or instrument to which such Member is a party or by which such Member or such Member’s property or assets is or may be bound, or (iv) will result in the creation or imposition of any material Lien upon any of the properties or assets of such Member or any of its Material Subsidiaries.

        (c)    Existence of the Company.   Each Member hereby represents and warrants to the Company and each other Member that prior to the time that the Certificate of Formation was filed, such Member neither represented to third parties the existence of the Company nor held himself or herself out as a member or manager of the Company.

        (d)    Governmental Authorizations.   Each Member hereby represents and warrants that no registration, declaration or filing with, or consent, approval, license, permit, or other authorization or order by, any governmental or regulatory authority, domestic or foreign, is required in connection with the valid execution, delivery, and performance by such Member of this Agreement, which, if not obtained, either individually or in the aggregate with all other Immateriality Exceptions, has or could reasonably be expected to have, a Material Adverse Effect.

        (e)    Litigation.   Each Member hereby represents and warrants that (i) there are no actions, suits, proceedings, or investigations pending or, to the knowledge of such Member, threatened against or affecting such Member or any of its Material Subsidiaries or any of their respective properties, assets, rights or businesses, in any court or before or by any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator which could (or, in the case of an investigation, could lead to any action, suit or proceeding, which could) reasonably be expected to impair such Member’s ability to perform its obligations under this Agreement or to have a Material Adverse Effect or bring into question the validity of this Agreement or the transactions contemplated hereby; and (ii) no Member or any of its Material Subsidiaries has received any currently effective notice of any default, and such Member is not in default, under any applicable order, writ, injunction, decree, permit, determination or award of any court, any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator



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which could reasonably be expected to impair its ability to perform its obligations under this Agreement or to have a Material Adverse Effect.

        (f)    Investment Company Act; Public Utility Holding Company Act.   Each Member hereby represents and warrants that such Member is a “qualified purchaser” within the meaning given to such term under Section 2(a)(51) of the Investment Company Act and the rules of the Securities and Exchange Commission thereunder.Each Member hereby represents and warrants that such Member is not a “holding company,” “an affiliate of a holding company,” or a “subsidiary of a holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act.

        (g)    Investigation; Intent.   Each Member hereby represents and warrants that (i) such Member is acquiring its Membership Interests based upon its own investigation, and the exercise by such Member of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis and expertise, (ii) its acquisition of its Membership Interests is being made for its own account for investment, and not with a view to the sale or distribution thereof, and (iii) it intends to participate as a member in a Delaware limited liability company in accordance with this Agreement for the purpose of making an economic profit from the transactions proposed to be entered into by the Company.

        (h)    Sole Owner.   Each Member hereby represents and warrants that it is acquiring it Membership Interests for its own account and is, and will remain, the sole beneficial owner of such Membership Interests at all times unless and until it Transfers ownership of all, or some part, of such Membership Interests in accordance with and only to the extent permitted under Section 11.2.

        (i)    No Intent to Avoid PTP Rules.   Each Member hereby represents and warrants that (i) it is not, and will not become, a trust, estate, partnership, or “S corporation” (within the meaning of Code Section 1361(a)) for U.S. federal income tax purposes or (ii) if it is, or if it becomes, a trust, estate, partnership, or S corporation for such purposes, then (x) less than 50% of the value of any direct or indirect equity or other beneficial interest in such trust, estate, partnership or S corporation is, and will at all times continue to be, attributable to its Membership Interests or any other Interest in the Company and (y) the principal purpose of the purchase of the Membership Interests is not to permit the Company or any entity of which the Company is a direct or indirect partner to satisfy the 100 partner limitation set forth in Treasury Regulation Section 1.7704-1(h)(1)(ii).

        (j)    No Sales on Established Securities Market.   Each Member agrees that it will not sell, market, transfer, assign, participate, pledge, or otherwise dispose of its Membership Interests (or any interest therein) on or through an “established securities market” within the meaning of Code Section 7704(b)(1) and the Treasury Regulations promulgated thereunder, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.







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