Representations and Warranties of the Underwriters Clause Example from Business Contracts

Representations and Warranties of the Underwriters. (a) Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Seller, in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a "Relevant Member State"), that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, it has not made and will not make an offer of Notes to the public in that Relevant Member State other than: (i) to any legal... entity which is a "qualified investor" as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than "qualified investors" as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Trust for any such offer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that, no such offer of the Notes referred to in (i) to (iii) above shall require the Seller, the Trust or any of the Underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this Section 5(a), (i) the expression an "offer of Notes to the public" in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe to the Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, (ii) the expression "Prospectus Directive" means Directive 2003/71/EC (as amended by 7 the 2010 PD Amending Directive and any amendments thereto) and includes any relevant implementing measure in each Relevant Member State, and (iii) the expression "2010 PD Amending Directive" means Directive 2010/73/EU. (b) Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Seller that: (i) It has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (the "FSMA") with respect to anything done by it in relation to the Notes in, from or otherwise involving or being capable of having effect in the United Kingdom. (ii) It has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Seller or the Trust. (iii) It has not delivered, and will not deliver, to any Rating Agency any Ratings Information without the prior consent of the Seller and has not participated, and will not participate in any oral communications regarding Ratings Information without the participation of a representative of the Seller. It will, consistent with its customary practices, provide notice of the obligations contained in the previous sentence to employees in the relevant departments. It shall provide to CNHCA and the Seller immediate notice of any breach of such obligations and cooperate with CNHCA and the Seller in attempting to remedy such breach. For purposes of this paragraph, "Ratings Information" means any information provided to any Rating Agency in connection with the issuance or monitoring of a credit rating on the Notes. Notwithstanding the foregoing, the aggregate liability of any Underwriter to CNHCA or the Seller in respect of any losses, claims, damages, liabilities or other amounts arising out of or based upon any breaches or alleged breaches by such Underwriter of its covenant set forth in this Section 5(b)(iii) will in no event exceed the total underwriting discounts and commissions received by such Underwriter, in each case as set forth in the Prospectus Supplement; provided, that the forgoing limitation will not apply to any breach by such Underwriter (x) occurring on or prior to the Closing Date or (y) that resulted from the gross negligence or willful misconduct of such Underwriter. (iv) Each Underwriter will enter into a Contract of Sale (within the meaning of Rule 159 under the Act) with an investor only after delivery of the Time of Sale Information to such investor. View More