Representations and Warranties by the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent and warrant to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof (unless otherwise specified), and agree with each Underwriter, as follows: (i) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement. (a) The Registration Statement, when it became effective, did not contain, and as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (c) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (f) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company and the Guarantors in writing by any Underwriter through the Representatives expressly for use therein.
Appears in 2 contracts
Sources: Underwriting Agreement (Quest Diagnostics Inc), Underwriting Agreement (Quest Diagnostics Inc)
Representations and Warranties by the Company and the Guarantors. (a) The Company and each of the Guarantors, jointly and severally, represent represent, warrant and warrant covenant to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof (unless otherwise specified), and agree with each Underwriter, as followsUnderwriters that:
(i1) The Company and the Guarantors meet the requirements for use of Form S-3 under the 1933 Act and have filed the Registration Statement with the Commission. The Registration Statement has become effective; effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement is in effect, has been issued under the 1933 Act and no proceedings for such that purpose have been instituted or are pending before or threatened or, to the knowledge of the Company, contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Company is a well-known seasoned issuer (may have filed with the Commission, as defined in Rule 405 under the 1933 Act) eligible part of an amendment to use the Registration Statement as an automatic shelf registration statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses, each of which has previously been furnished to the Lead Representative. The Company will file with the Commission pursuant to Rule 424(b) a final supplement to the Basic Prospectus relating to the Securities and the Company has not received notice that offering thereof. As filed, such final prospectus supplement shall include all information required by the Commission objects 1933 Act to be included therein with respect to the use of Securities and the offering thereof and, except to the extent the Lead Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Lead Representative prior to the date and time this Underwriting Agreement is entered into or, to the extent not completed at the Initial Sale Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus, the Pricing Prospectus and any other Preliminary Prospectus) as the Lead Representative has agreed in writing.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became effective, the Registration Statement, any amendments thereto and any documents incorporated by reference therein complied and will comply as to form in all material respects with the requirements of the 1933 Act and the Trust Indenture Act of 1939, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “1939 Act”), and at such times and at the time of the execution of this Underwriting Agreement did not and will not contain an automatic shelf registration statementuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the date of the Prospectus, and as of the Closing Date, neither the Prospectus nor any amendments and supplements thereto contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this Section 2(a)(2) shall not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement or the Prospectus.
(a3) The Registration StatementDisclosure Package, when it became effectiveas amended or supplemented as of the Initial Sale Time, did not contain, and as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no Issuer Free Writing Prospectus (bas defined in Rule 433 under the 1▇▇▇ ▇▇▇) includes any information that conflicts in any material respect with the information contained in the Registration Statement as of the date hereof does Statement, including any document incorporated therein, any Preliminary Prospectus that has not contain any untrue statement of a material fact been superceded or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (c) the Registration Statement modified and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with Prospectus. Notwithstanding the 1933 Act and the applicable rules and regulations of the Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Timeforegoing, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (f) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection Section 2(a)(3) shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Disclosure Package or an Issuer Free Writing Prospectus or the Prospectus (i) made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Disclosure Package or an Issuer Free Writing Prospectus, or (ii) any information contained in any “free writing prospectus” (including any Issuer Free Writing Prospectus) prepared by or on behalf of any Underwriter(s), except to the extent such information has been accurately extracted from a Preliminary Prospectus or any Issuer Free Writing Prospectus prepared by or on behalf of the Company and included in such free writing prospectus prepared by or on behalf of any Underwriter(s).
(4) The Company (including its agents and representatives, other than the Underwriters) has not made, used, prepared, authorized or approved or referred to any Issuer Free Writing Prospectus that it was required to file with the Commission or retain under Rule 433 other than the Issuer Free Writing Prospectuses identified in Schedule II hereto.
(5) (i) At the earliest time after filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act), and (ii) as of the date and time of this Underwriting Agreement, the Company was not an “ineligible issuer” as defined in Rule 405 under the 1933 Act.
(6) Subsequent to December 31, 2006, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has (i) issued or granted any securities, (ii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, or repaid any material liability or obligation other than in the ordinary course of business, (iii) entered into any material transaction not in the ordinary course of business or (iv) declared or paid any dividend on, or redeemed, any of its capital stock.
(7) Each of the Company and the Guarantors has been duly organized and is validly existing as a limited liability company in writing good standing under the laws of its jurisdiction of formation. The Company has no “significant subsidiaries” within the meaning of Rule 1-02 of Regulation S-X under the 1933 Act other than the Guarantors and RFC Asset Holdings II, LLC (collectively, the “Significant Subsidiaries”). Each of the Company and its subsidiaries has all requisite power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, in each case as described in the Registration Statement, the Disclosure Package and the Prospectus. Each of the Company and its subsidiaries is duly qualified and authorized to do business and is in good standing as a foreign corporation, partnership or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business requires such qualification, except for those failures to be so qualified or in good standing that, individually or in the aggregate, would not reasonably be expected to (i) have a material adverse effect on the properties, business, results of operations, financial condition and stockholders’ equity of the Company and its subsidiaries, taken as a whole, (ii) adversely affect the ability of the Company or any of the Guarantors to enter into and perform their respective material obligations under this Underwriting Agreement, the Indenture or the Guarantees, including the issuance and sale of the Securities and the use the proceeds of the issuance of the Securities as described in the Prospectus under the heading “Use of Proceeds” or (iii) impair the validity of any material obligation of the Company or any of the Guarantors under the Securities or this Underwriting Agreement (any such effect being a “Material Adverse Effect”).
(8) All of the issued and outstanding limited liability company interests of each Guarantor have been duly authorized and validly issued and are owned, directly or indirectly, by the Company, free and clear of any lien, charge, mortgage, pledge, security interest, claim, limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever (each, a “Lien”). None of the Guarantors has outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or any preemptive rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or sell, or instruments convertible into or exchangeable for, any limited liability company interests or other equity interest in, any Guarantor (each, a “Right”). The authorized, issued and outstanding limited liability company interests of the Company is as set forth in the Registration Statement. All of the issued and outstanding limited liability company interests of the Company have been duly authorized and validly issued, in compliance with all applicable state, federal and foreign securities laws and not in violation of or subject to any preemptive or similar right that does or will entitle any person, upon the issuance or sale of any security, to acquire from the Company or any subsidiary any limited liability company interests or other equity interest in the Company.
(9) Each of the Company and the Guarantors has the requisite power and authority to execute, deliver and perform its obligations under this Underwriting Agreement, the Indenture and the Guarantees to which it is a party and to consummate the transactions contemplated thereby.
(10) As of the Closing Date, the instruments representing the Debt Securities will have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Underwriting Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and when delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) (clauses (i) and (ii) are referred to herein collectively as the “Enforceability Exceptions”) and entitled to the benefits of the Indenture.
(11) As of the Closing Date, each of the Guarantees will have been duly authorized by the applicable Guarantor and, when the instruments representing the Debt Securities have been executed by the Company, the Guarantees endorsed thereon have been executed by the Guarantors and the instruments representing the Debt Securities have been authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, the Guarantees will have been validly executed, issued and delivered by the applicable Guarantor and will constitute the legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions, and entitled to the benefits of the Indenture.
(12) The Indenture has been duly authorized by each of the Company and the Guarantors and meets the requirements for qualification under the 1939 Act, and the rules and regulations of the Commission applicable to an indenture so qualified and constitutes the legal, valid and binding obligation of each of the Company and the Guarantors, enforceable against each of them in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions.
(13) This Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantors.
(14) Each of the Company and its subsidiaries has obtained or made all consents, approvals, authorizations, orders, registrations, qualifications, licenses, filings and permits of, with and from all judicial, regulatory and other legal or governmental agencies, bodies or administrative agencies, foreign and domestic (each, a “Governmental Consent”), necessary to conduct its business as it is now being conducted and to own, lease and operate its properties, in each case, as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(15) Neither the Company nor any of the Significant Subsidiaries is (i) in violation of its certificate or articles of incorporation, bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership, partnership agreement or any other organizational document of the Company or any of the Significant Subsidiaries (“Organizational Documents”), (ii) in violation of any law, rule, regulation, ordinance, directive, judgment, decree, order or Governmental Consent of any judicial, regulatory or other legal or governmental agency or body, foreign or domestic, by which the Company or any of the Significant Subsidiaries is bound or to which any of its properties or assets is subject (each, an “Applicable Law”) or (iii) in default under, and no event has occurred that, with notice or lapse of time or both or otherwise, would constitute a default under, or result in the creation or imposition of any Lien upon, any of its property or assets, or an acceleration of any indebtedness of the Company or any of the Significant Subsidiaries, pursuant to any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Significant Subsidiaries is a party or by which any of them is bound or to which any of their respective properties or assets is subject (each, an “Applicable Contract”), except (in the case of clauses (ii) and (iii) above) as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(16) No Governmental Consent or consent of or notice to any other third party is required for the execution, delivery and performance by each of the Company and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party or the consummation of the transactions contemplated thereby, except such Governmental Consents and other consents as have been or will be obtained and made on or prior to the Closing Date (or will be obtained and made under the 1933 Act, the 1939 Act and state securities or blue sky laws and regulations).
(17) Neither the execution, delivery or performance by any Underwriter through of the Representatives expressly for use therein.Company and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party nor the consummation of the transactions contemplated thereby (i) violates or will violate, conflicts with or will conflict with, requires or will require consent under, or results or will result in a breach of, or (ii) constitutes or will constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or (iii) results or will result in the creation or imposition of any Lien upon any properties or assets of the Company or any of the Guarantors or an acceleration of any indebtedness of the Company or any of the Guarantors pursuant to, any provision of (A) any Organizational Document of the Company or any of the Guarantors, (B) any Applicable Law by which the Company or any of the Guarantors is bound or to which any of their respective properties or assets is subject or (C) any Applicable Contract to which any of the Guarantors is a party or by which any of them is bound or to which any of their respective properties or ass
Appears in 1 contract
Representations and Warranties by the Company and the Guarantors. (a) The Company and each of the Guarantors, jointly and severally, represent represent, warrant and warrant covenant to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof (unless otherwise specified), and agree with each Underwriter, as followsUnderwriters that:
(i1) The Company and the Guarantors meet the requirements for use of Form S-3 under the 1933 Act and have filed the Registration Statement with the Commission. The Registration Statement has become effective; effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement is in effect, has been issued under the 1933 Act and no proceedings for such that purpose have been instituted or are pending before or threatened or, to the knowledge of the Company, contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Company is a well-known seasoned issuer (may have filed with the Commission, as defined in Rule 405 under the 1933 Act) eligible part of an amendment to use the Registration Statement as an automatic shelf registration statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses, each of which has previously been furnished to the Lead Representatives. The Company will file with the Commission pursuant to Rule 424(b) a final supplement to the Basic Prospectus relating to the Securities and the Company has not received notice that offering thereof. As filed, such final prospectus supplement shall include all information required by the Commission objects 1933 Act to be included therein with respect to the use of Securities and the offering thereof and, except to the extent the Lead Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Lead Representatives prior to the date and time this Underwriting Agreement is entered into or, to the extent not completed at the Initial Sale Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus, the Pricing Prospectus and any other Preliminary Prospectus) as the Lead Representatives has agreed in writing.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became effective, the Registration Statement, any amendments thereto and any documents incorporated by reference therein complied and will comply as to form in all material respects with the requirements of the 1933 Act and the Trust Indenture Act of 1939, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “1939 Act”), and at such times and at the time of the execution of this Underwriting Agreement did not and will not contain an automatic shelf registration statementuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the date of the Prospectus, and as of the Closing Date, neither the Prospectus nor any amendments and supplements thereto contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this Section 2(a)(2) shall not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement or the Prospectus.
(a3) The Registration StatementDisclosure Package, when it became effectiveas amended or supplemented as of the Initial Sale Time, did not contain, and as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no Issuer Free Writing Prospectus (bas defined in Rule 433 under the 1▇▇▇ ▇▇▇) includes any information that conflicts in any material respect with the information contained in the Registration Statement as of the date hereof does Statement, including any document incorporated therein, any Preliminary Prospectus that has not contain any untrue statement of a material fact been superceded or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (c) the Registration Statement modified and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with Prospectus. Notwithstanding the 1933 Act and the applicable rules and regulations of the Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Timeforegoing, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (f) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection Section 2(a)(3) shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Disclosure Package or an Issuer Free Writing Prospectus or the Prospectus (i) made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Disclosure Package or an Issuer Free Writing Prospectus, or (ii) any information contained in any “free writing prospectus” (including any Issuer Free Writing Prospectus) prepared by or on behalf of any Underwriter(s), except to the extent such information has been accurately extracted from a Preliminary Prospectus or any Issuer Free Writing Prospectus prepared by or on behalf of the Company and included in such free writing prospectus prepared by or on behalf of any Underwriter(s).
(4) The Company (including its agents and representatives, other than the Underwriters) has not made, used, prepared, authorized or approved or referred to any Issuer Free Writing Prospectus that it was required to file with the Commission or retain under Rule 433 other than the Issuer Free Writing Prospectuses identified in Schedule II hereto.
(5) (i) At the earliest time after filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act), and (ii) as of the date and time of this Underwriting Agreement, the Company was not an “ineligible issuer” as defined in Rule 405 under the 1933 Act.
(6) Subsequent to December 31, 2006, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has (i) issued or granted any securities, (ii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, or repaid any material liability or obligation other than in the ordinary course of business, (iii) entered into any material transaction not in the ordinary course of business or (iv) declared or paid any dividend on, or redeemed, any of its capital stock.
(7) Each of the Company and the Guarantors has been duly organized and is validly existing as a limited liability company in writing good standing under the laws of its jurisdiction of formation. The Company has no “significant subsidiaries” within the meaning of Rule 1-02 of Regulation S-X under the 1933 Act other than the Guarantors and RFC Asset Holdings II, LLC (collectively, the “Significant Subsidiaries”). Each of the Company and its subsidiaries has all requisite power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, in each case as described in the Registration Statement, the Disclosure Package and the Prospectus. Each of the Company and its subsidiaries is duly qualified and authorized to do business and is in good standing as a foreign corporation, partnership or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business requires such qualification, except for those failures to be so qualified or in good standing that, individually or in the aggregate, would not reasonably be expected to (i) have a material adverse effect on the properties, business, results of operations, financial condition and stockholders’ equity of the Company and its subsidiaries, taken as a whole, (ii) adversely affect the ability of the Company or any of the Guarantors to enter into and perform their respective material obligations under this Underwriting Agreement, the Indenture or the Guarantees, including the issuance and sale of the Securities and the use the proceeds of the issuance of the Securities as described in the Prospectus under the heading “Use of Proceeds” or (iii) impair the validity of any material obligation of the Company or any of the Guarantors under the Securities or this Underwriting Agreement (any such effect being a “Material Adverse Effect”).
(8) All of the issued and outstanding limited liability company interests of each Guarantor have been duly authorized and validly issued and are owned, directly or indirectly, by the Company, free and clear of any lien, charge, mortgage, pledge, security interest, claim, limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever (each, a “Lien”). None of the Guarantors has outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or any preemptive rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or sell, or instruments convertible into or exchangeable for, any limited liability company interests or other equity interest in, any Guarantor (each, a “Right”). The authorized, issued and outstanding limited liability company interests of the Company is as set forth in the Registration Statement. All of the issued and outstanding limited liability company interests of the Company have been duly authorized and validly issued, in compliance with all applicable state, federal and foreign securities laws and not in violation of or subject to any preemptive or similar right that does or will entitle any person, upon the issuance or sale of any security, to acquire from the Company or any subsidiary any limited liability company interests or other equity interest in the Company.
(9) Each of the Company and the Guarantors has the requisite power and authority to execute, deliver and perform its obligations under this Underwriting Agreement, the Indenture and the Guarantees to which it is a party and to consummate the transactions contemplated thereby.
(10) As of the Closing Date, the instruments representing the Debt Securities will have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Underwriting Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and when delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) (clauses (i) and (ii) are referred to herein collectively as the “Enforceability Exceptions”) and entitled to the benefits of the Indenture.
(11) As of the Closing Date, each of the Guarantees will have been duly authorized by the applicable Guarantor and, when the instruments representing the Debt Securities have been executed by the Company, the Guarantees endorsed thereon have been executed by the Guarantors and the instruments representing the Debt Securities have been authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, the Guarantees will have been validly executed, issued and delivered by the applicable Guarantor and will constitute the legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions, and entitled to the benefits of the Indenture.
(12) The Indenture has been duly authorized by each of the Company and the Guarantors and meets the requirements for qualification under the 1939 Act, and the rules and regulations of the Commission applicable to an indenture so qualified and constitutes the legal, valid and binding obligation of each of the Company and the Guarantors, enforceable against each of them in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions.
(13) This Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantors.
(14) Each of the Company and its subsidiaries has obtained or made all consents, approvals, authorizations, orders, registrations, qualifications, licenses, filings and permits of, with and from all judicial, regulatory and other legal or governmental agencies, bodies or administrative agencies, foreign and domestic (each, a “Governmental Consent”), necessary to conduct its business as it is now being conducted and to own, lease and operate its properties, in each case, as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(15) Neither the Company nor any of the Significant Subsidiaries is (i) in violation of its certificate or articles of incorporation, bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership, partnership agreement or any other organizational document of the Company or any of the Significant Subsidiaries (“Organizational Documents”), (ii) in violation of any law, rule, regulation, ordinance, directive, judgment, decree, order or Governmental Consent of any judicial, regulatory or other legal or governmental agency or body, foreign or domestic, by which the Company or any of the Significant Subsidiaries is bound or to which any of its properties or assets is subject (each, an “Applicable Law”) or (iii) in default under, and no event has occurred that, with notice or lapse of time or both or otherwise, would constitute a default under, or result in the creation or imposition of any Lien upon, any of its property or assets, or an acceleration of any indebtedness of the Company or any of the Significant Subsidiaries, pursuant to any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Significant Subsidiaries is a party or by which any of them is bound or to which any of their respective properties or assets is subject (each, an “Applicable Contract”), except (in the case of clauses (ii) and (iii) above) as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(16) No Governmental Consent or consent of or notice to any other third party is required for the execution, delivery and performance by each of the Company and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party or the consummation of the transactions contemplated thereby, except such Governmental Consents and other consents as have been or will be obtained and made on or prior to the Closing Date (or will be obtained and made under the 1933 Act, the 1939 Act and state securities or blue sky laws and regulations).
(17) Neither the execution, delivery or performance by any Underwriter through of the Representatives expressly for use therein.Company and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party nor the consummation of the transactions contemplated thereby (i) violates or will violate, conflicts with or will conflict with, requires or will require consent under, or results or will result in a breach of, or (ii) constitutes or will constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or (iii) results or will result in the creation or imposition of any Lien upon any properties or assets of the Company or any of the Guarantors or an acceleration of any indebtedness of the Company or any of the Guarantors pursuant to, any provision of (A) any Organizational Document of the Company or any of the Guarantors, (B) any Applicable Law by which the Company or any of the Guarantors is bound or to which any of their respective properties or assets is subject or (C) any Applicable Contract to which any of the Guarantors is a party or by which any of them is bound or to which any of their respective properties or
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Representations and Warranties by the Company and the Guarantors. (a) The Company and each of the Guarantors, jointly and severally, represent and warrant to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof (unless otherwise specified), and agree with each Underwriter, as followsUnderwriters that:
(i1) The Company and the Guarantors meet the requirements for use of Form S-3 under the 1933 Act and have filed the Registration Statement with the Commission. The Registration Statement has become effective; effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement is in effect, has been issued under the 1933 Act and no proceedings for such that purpose have been instituted or are pending before or threatened or, to the knowledge of the Company, contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Company is a well-known seasoned issuer (may have filed with the Commission, as defined in Rule 405 under the 1933 Act) eligible part of an amendment to use the Registration Statement as an automatic shelf registration statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses, each of which has previously been furnished to the Lead Representative. The Company will file with the Commission pursuant to Rule 424(b) a final supplement to the Basic Prospectus relating to the Securities and the Company has not received notice that offering thereof. As filed, such final prospectus supplement shall include all information required by the Commission objects 1933 Act to be included therein with respect to the use of Securities and the offering thereof and, except to the extent the Lead Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Lead Representative prior to the date and time this Underwriting Agreement is entered into or, to the extent not completed at the Initial Sale Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus, the Pricing Prospectus and any other Preliminary Prospectus) as the Lead Representative has agreed in writing.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became effective, the Registration Statement, any amendments thereto and any documents incorporated by reference therein complied and will comply as to form in all material respects with the requirements of the 1933 Act and the Trust Indenture Act of 1939, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “1939 Act”), and at such times and at the time of the execution of this Underwriting Agreement did not and will not contain an automatic shelf registration statementuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the date of the Prospectus, and as of the Closing Date, neither the Prospectus nor any amendments and supplements thereto contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this Section 2(a)(2) shall not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement or the Prospectus.
(a3) The Registration StatementDisclosure Package, when it became effectiveas amended or supplemented as of the Initial Sale Time, did not contain, and as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no Issuer Free Writing Prospectus (bas defined in Rule 433 under the 1▇▇▇ ▇▇▇) includes any information that conflicts in any material respect with the information contained in the Registration Statement as of the date hereof does Statement, including any document incorporated therein, any Preliminary Prospectus that has not contain any untrue statement of a material fact been superceded or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (c) the Registration Statement modified and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with Prospectus. Notwithstanding the 1933 Act and the applicable rules and regulations of the Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Timeforegoing, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (f) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection Section 2(a)(3) shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus Disclosure Package or the Prospectus an Issuer Free
(i) made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Disclosure Package or an Issuer Free Writing Prospectus, or (ii) any information contained in any “free writing prospectus” (including any Issuer Free Writing Prospectus) prepared by or on behalf of any Underwriter(s), except to the extent such information has been accurately extracted from a Preliminary Prospectus or any Issuer Free Writing Prospectus prepared by or on behalf of the Company and included in such free writing prospectus prepared by or on behalf of any Underwriter(s).
(4) The Company (including its agents and representatives, other than the Underwriters) has not made, used, prepared, authorized or approved or referred to any Issuer Free Writing Prospectus that it was required to file with the Commission or retain under Rule 433 other than the Issuer Free Writing Prospectuses identified in Schedule II hereto.
(5) (i) At the earliest time after filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act), and (ii) as of the date and time of this Underwriting Agreement, the Company was not an “ineligible issuer” as defined in Rule 405 under the 1933 Act.
(6) Subsequent to December 31, 2005, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has (i) issued or granted any securities, (ii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, or repaid any material liability or obligation other than in the ordinary course of business, (iii) entered into any material transaction not in the ordinary course of business or (iv) declared or paid any dividend on, or redeemed, any of its capital stock.
(7) Each of the Company and the Guarantors has been duly organized and is validly existing as a corporation in writing good standing under the laws of its jurisdiction of incorporation. The Company has no “significant subsidiaries” within the meaning of Rule 1-02 of Regulation S-X under the 1933 Act other than the Guarantors, RFC Asset Holdings II, Inc. and GMAC Bank (collectively, the “Significant Subsidiaries”). Each of the Company and its subsidiaries has all requisite power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, in each case as described in the Registration Statement, the Disclosure Package and the Prospectus. Each of the Company and its subsidiaries is duly qualified and authorized to do business and is in good standing as a foreign corporation, partnership or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business requires such qualification, except for those failures to be so qualified or in good standing that, individually or in the aggregate, would not reasonably be expected to (i) have a material adverse effect on the properties, business, results of operations, financial condition and stockholders’ equity of the Company and its subsidiaries, taken as a whole, (ii) adversely affect the ability of the Company or any of the Guarantors to enter into and perform their respective material obligations under this Underwriting Agreement, the Indenture or the Guarantees, including the issuance and sale of the Securities and the use the proceeds of the issuance of the Securities as described in the Prospectus under the heading “Use of Proceeds” or (iii) impair the validity of any material obligation of the Company or any of the Guarantors under the Securities or this Underwriting Agreement (any such effect being a “Material Adverse Effect”).
(8) All of the issued shares of capital stock of each Guarantor have been duly authorized and validly issued and are fully paid and non-assessable and are owned, directly or indirectly, by the Company, free and clear of any lien, charge, mortgage, pledge, security interest, claim, limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever (each, a “Lien”). None of the Guarantors has outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or any preemptive rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or sell, or instruments convertible into or exchangeable for, any capital stock or other equity interest in, any Guarantor (each, a “Right”). The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement. All of the issued and outstanding shares of capital stock of the Company are fully paid and non-assessable and have been duly authorized and validly issued, in compliance with all applicable state, federal and foreign securities laws and not in violation of or subject to any preemptive or similar right that does or will entitle any person, upon the issuance or sale of any security, to acquire from the Company or any subsidiary any capital stock or other equity interest in the Company.
(9) Each of the Company and the Guarantors has the requisite corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement, the Indenture and the Guarantees to which it is a party and to consummate the transactions contemplated thereby.
(10) As of the Closing Date, the instruments representing the Debt Securities will have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Underwriting Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and when delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) (clauses (i) and (ii) are referred to herein collectively as the “Enforceability Exceptions”) and entitled to the benefits of the Indenture.
(11) As of the Closing Date, each of the Guarantees will have been duly authorized by the applicable Guarantor and, when the instruments representing the Debt Securities have been executed by the Company, the Guarantees endorsed thereon have been executed by the Guarantors and the instruments representing the Debt Securities have been authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms hereof and thereof, the Guarantees will have been validly executed, issued and delivered by the applicable Guarantor and will constitute the legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions, and entitled to the benefits of the Indenture.
(12) The Indenture has been duly authorized by each of the Company and the Guarantors and meets the requirements for qualification under the 1939 Act, and the rules and regulations of the Commission applicable to an indenture so qualified and constitutes the legal, valid and binding obligation of each of the Company and the Guarantors, enforceable against each of them in accordance with its terms, except that the enforcement thereof may be limited by the Enforceability Exceptions.
(13) This Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantors.
(14) Each of the Company and its subsidiaries has obtained or made all consents, approvals, authorizations, orders, registrations, qualifications, licenses, filings and permits of, with and from all judicial, regulatory and other legal or governmental agencies, bodies or administrative agencies, foreign and domestic (each, a “Governmental Consent”), necessary to conduct its business as it is now being conducted and to own, lease and operate its properties, in each case, as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(15) Neither the Company nor any of the Significant Subsidiaries is (i) in violation of its certificate or articles of incorporation, bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership, partnership agreement or any other organizational document of the Company or any of the Significant Subsidiaries (“Organizational Documents”), (ii) in violation of any law, rule, regulation, ordinance, directive, judgment, decree, order or Governmental Consent of any judicial, regulatory or other legal or governmental agency or body, foreign or domestic, by which the Company or any of the Significant Subsidiaries is bound or to which any of its properties or assets is subject (each, an “Applicable Law”) or (iii) in default under, and no event has occurred that, with notice or lapse of time or both or otherwise, would constitute a default under, or result in the creation or imposition of any Lien upon, any of its property or assets, or an acceleration of any indebtedness of the Company or any of the Significant Subsidiaries, pursuant to any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Significant Subsidiaries is a party or by which any of them is bound or to which any of their respective properties or assets is subject (each, an “Applicable Contract”), except (in the case of clauses (ii) and (iii) above) as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(16) No Governmental Consent or consent of or notice to any other third party is required for the execution, delivery and performance by each of the Company and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party or the consummation of the transactions contemplated thereby, except such Governmental Consents and other consents as have been or will be obtained and made on or prior to the Closing Date (or will be obtained and made under the 1933 Act, the 1939 Act and state securities or blue sky laws and regulations).
(17) Neither the execution, delivery or performance by any Underwriter through of the Representatives expressly for use thereinCompany and the Guarantors of this Underwriting Agreement, the Indenture or the Guarantees to which it is a party nor the consummation of the transactions contemplated thereby (i) violates or will violate, conflicts with or will conflict with, requires or will require consent under, or results or will result in a breach of, or (ii) constitutes or will constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or (iii) results or will result in the creation or imposition of any Lien upon any properties or assets of the Company or any of the Guarantors or an acceleration of any indebtedness of the Company or any of the Guarantors pursuant to, any provision of (A) any Organizational Document of the Company or any of the Guarantors, (B) any Applicable Law by which the Company or any of the Guarantors is bound or to which any of their respective properties or assets is subject or (C) any Applicable Contract to which any of the Guarantors is a party or by which any of them is bound or to which any of their respective properties or assets is subject.
(18) No Significant Subsidiary
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