Representations and Warranties of the Company and the Guarantor. Unless otherwise indicated, each of the Company and the Guarantor jointly and severally represents and warrants to, and agrees with, each Agent as follows: (a) A Registration Statement on Form S-3 relating to the Program Securities and the Guarantees has been filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), and has been declared effective by the Commission and no order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or the Guarantor or any offering of the Program Securities and the Guarantees has been initiated or threatened by the Commission. Such registration statement, as amended or supplemented from time to time, including on the Closing Date (as defined in Section 6 below), including the documents incorporated therein by reference is hereinafter referred to as the “Registration Statement” and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements, prospectus addenda, index supplements, underlying supplements and/or final pricing supplements setting forth the terms of the Program Securities and the Guarantees, including all material incorporated by reference therein, in the form in which such prospectus, prospectus supplement, product supplement(s), prospectus addenda, index supplement(s), underlying supplement(s) and/or final pricing supplement(s) have most recently been filed, or transmitted for filing, with the Commission pursuant to paragraph (b) of Rule 424 of the rules and regulations adopted by the Commission thereunder, is hereinafter referred to as the “Prospectus”. (b) On the date it most recently became effective under the Act, the Registration Statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations adopted by the Commission under the Act and the Trust Indenture Act (the “Rules and Regulations”) and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company or the Guarantor by any Agent specifically for use therein. (c) The Time of Sale Information at each Time of Sale and at the Closing Date will not contain any untrue statement of a material fact or 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; provided that the each of the Company and the Guarantor makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Agent furnished to the Company or the Guarantor in writing by such Agent expressly for use in such Time of Sale Information.
Appears in 2 contracts
Sources: Master Agency Agreement (JPMorgan Chase Financial Co. LLC), Master Agency Agreement (JPMorgan Chase Financial Co. LLC)
Representations and Warranties of the Company and the Guarantor. Unless otherwise indicated, each of the The Company and the Guarantor jointly represent and severally represents and warrants warrant to, and agrees agree with, the several Underwriters that as of the date hereof and as of the applicable Delivery Date (as defined below) (each Agent referred to as follows:a "Representation Date"):
(a) A Registration Statement on Form S-3 relating to the Program Securities The Company and the Guarantees has been Guarantor have filed with the Securities and Exchange Commission (the “"Commission”") a joint registration statement (Nos. 333-51907 and 333-51907-01) relating to the Debt Securities and the guarantees thereof of the Guarantor (the "Guarantees") and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the “"1933 Act”"), and have filed such amendments thereto as may have been required to the date hereof. Such registration statement (as so amended) has been declared effective by the Commission and no order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or the Guarantor or any offering of the Program Securities and the Guarantees has been initiated or threatened by the Commission. Such registration statement, as amended or supplemented from time to time, including on the Closing Date (as defined in Section 6 below)date hereof, including the documents incorporated therein by reference is hereinafter referred to as the “Registration Statement” exhibits thereto, schedules thereto, if any, and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements, prospectus addenda, index supplements, underlying supplements and/or final pricing supplements setting forth the terms of the Program Securities and the Guarantees, including all material documents incorporated by reference therein, in the form in which such prospectus, prospectus supplement, product supplement(s), prospectus addenda, index supplement(s), underlying supplement(s) and/or final pricing supplement(s) have most recently been filed, or transmitted for filing, with the Commission therein pursuant to paragraph (b) Item 12 of Rule 424 of Form S-3 under the rules and regulations adopted by the Commission thereunder1933 Act, is hereinafter referred to as the “"Registration Statement", and the prospectus constituting a part of such Registration Statement, as amended and as supplemented as contemplated by Section 4 to reflect the terms of the Securities and the terms of the offering thereof, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is hereinafter referred to as the "Prospectus”". A "preliminary prospectus" shall be deemed to refer to any prospectus or prospectus supplement that omitted information to be included upon pricing in a form of prospectus or prospectus supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act, that was used after the Registration Statement became effective and prior to the date of this Agreement. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement to the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
(b) On At the date it most recently respective times the Registration Statement and any post-effective amendments thereto became effective under and, if an annual report on Form 10-K has been filed by the ActGuarantor with the Commission subsequent to effectiveness of the Registration Statement or any such post-effective amendment, then at the time of the most recent such filing, the Registration Statement and any post-effective amendments thereto conformed in all material respects to the requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture "1939 Act”) "), and the rules and regulations adopted by of the Commission under the Act and the Trust Indenture Act (the “"Rules and Regulations”") and did not include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the Closing each Representation Date, the Registration Statement Statement, any post-effective amendment thereto and the Prospectus conforms or will conform in all material respects to the requirements of the 1933 Act, the Trust Indenture 1939 Act and the Rules and Regulations and (i) the Registration Statement, as amended as of any such time, does not or will not include 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 and (ii) the Prospectus, as supplemented as of any such time, does not or will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company or the Guarantor by any Agent specifically for use therein.
(c) The Time of Sale Information at each Time of Sale and at the Closing Date will not contain any untrue statement of a material fact or 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; provided , except that the foregoing does not apply to statements in or omissions from any such documents based upon written information furnished to the Company or the Guarantor by any Underwriter, or on behalf of any Underwriter by the Representatives, specifically for use therein or based upon the Statement of Eligibility of the Trustee under the Indenture or to statements in or omissions from such Statement of Eligibility. Each preliminary prospectus and prospectus filed as part of the Registration Statement as originally filed or as part of an amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the Rules and Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities was, at the time of such delivery, identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1934 Act and the Rules and Regulations, as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at each Representation Date, did not and will not contain 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.
(d) The financial statements of the Guarantor included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Guarantor and its consolidated subsidiaries at the dates indicated and the statement of operations, shareowners' equity and cash flows of the Guarantor and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(e) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the financial condition or results of operations of the Company or of the Guarantor and its subsidiaries, taken as a whole, (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company or by the Guarantor or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company or the Guarantor and its subsidiaries, taken as a whole, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company or the Guarantor on any class of its capital stock, except for regular quarterly dividends on the Guarantor's common stock, par value $.01 per share, in amounts that are consistent with past practice and, prior to the Separation referred to therein, regular dividends on the Guarantor's preferred stock.
(f) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(g) The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor makes no representation and warranty (assuming the due authorization, execution and delivery by the Trustee) constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with respect to any statements or omissions made in reliance upon and in conformity with information its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(h) The Securities have been duly authorized and, at the Delivery Date, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(i) The Guarantees have been duly authorized and, at the Delivery Date, will have been duly executed by the Guarantor and, when issued and delivered in the manner provided for in the Indenture, will constitute legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(j) The Securities, the Guarantees and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(k) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein (including, without limitation, the issuance and sale of the Securities and the Guarantees) and compliance by the Company and the Guarantor with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any Agent furnished lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any subsidiary of the Guarantor pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Guarantor or any subsidiary of the Guarantor is subject (collectively, "Agreements and Instruments") (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or bylaws of the Company, the Guarantor or any subsidiary of the Guarantor or, to the best knowledge of the Company and the Guarantor, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any subsidiary the Guarantor or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness of the Company, the Guarantor or any subsidiary of the Guarantor (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any subsidiary of the Guarantor.
(l) Except as disclosed in the Registration Statement, there is not pending or, to the knowledge of the Company or the Guarantor, threatened any action, suit, proceeding, inquiry or investigation to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or to which the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor is subject, before or by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the assets, properties or operations of the Company, the Guarantor and any subsidiary of the Guarantor, taken as a whole, or the consummation of the transactions contemplated by this Agreement or the Indenture or the performance by the Company or the Guarantor of their respective obligations thereunder.
(m) The Guarantor and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Guarantor and its subsidiaries are in writing by compliance with the terms and conditions of all such Agent expressly for use Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Time Governmental Licenses or the failure of Sale Informationsuch Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and neither the Guarantor nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Company and the Guarantor. Unless otherwise indicated, each Each of the Company and the Guarantor jointly and severally represents and warrants to, and agrees with, each Agent Underwriter that: An “automatic shelf registration statement” as follows:
defined under Rule 405 under the Securities Act of 1933, as amended (a) A Registration Statement the “Act”), on Form S-3 relating to (File Nos. 333-135919, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-135919-04) in respect of the Program Securities and the related Guarantees has been filed with the Securities and Exchange Commission (the “Commission”) under not earlier than three years prior to the Securities Act of 1933, as amended (the “Act”), date hereof; such registration statement and has been declared any post-effective by the Commission amendment thereto became effective on filing; and no stop order suspending the effectiveness of the Registration Statement such registration statement or any part thereof has been issued by the Commission and no proceeding for that purpose has been initiated or, to each of the Company’s and the Guarantor’s knowledge, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Section 8A of Rule 401(g)(2) under the Act against has been received by the Company or the Guarantor or any offering (the base prospectus filed as part of the Program Securities and the Guarantees has been initiated or threatened by the Commission. Such such registration statement, as amended or supplemented from time to time, including on the Closing Date (as defined in Section 6 below), including the documents incorporated therein by reference is hereinafter referred to as the “Registration Statement” and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements, prospectus addenda, index supplements, underlying supplements and/or final pricing supplements setting forth the terms of the Program Securities and the Guarantees, including all material incorporated by reference therein, in the form in which such prospectus, prospectus supplement, product supplement(s), prospectus addenda, index supplement(s), underlying supplement(s) and/or final pricing supplement(s) have it has most recently been filed, or transmitted for filing, filed with the Commission pursuant on or prior to paragraph (b) the date of Rule 424 of the rules and regulations adopted by the Commission thereunderthis Agreement, is hereinafter referred to as the “Base Prospectus”.
; any preliminary prospectus (bincluding any preliminary prospectus supplement) On relating to the date it most recently Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding any Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective effective, are hereinafter collectively called the “Registration Statement”; the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 2(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 4(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein (such incorporated documents, other than reports filed by The Bank of New York Company, Inc. with the Commission under the Exchange Act, the “Mellon Incorporated Documents”), in each case after the date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company and the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”). No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus or the Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act, Act and the Trust Indenture Act of 1939, as amended 1939 (the “Trust Indenture Act”) and the rules and regulations adopted thereunder, and did not contain 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, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through Bear, ▇▇▇▇▇▇▇ & Co. Inc. or UBS Securities LLC, as representatives of the Underwriters (each a “Representative” and together the “Representatives”) expressly for use therein. For the purposes of this Agreement, the “Applicable Time” is 2:45 P.M. (New York City time) on the date of this Agreement; the Pricing Prospectus as supplemented by the Commission under the Act final term sheet prepared and the Trust Indenture Act filed pursuant to Section 4(a) hereof, taken together (collectively, the “Rules and RegulationsPricing Disclosure Package”) as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule C hereto (if any) does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company or the Guarantor by any Agent specifically for use therein.
(c) The Time of Sale Information at each Time of Sale and at the Closing Date will not contain any untrue statement of a material fact or 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; provided provided, however, that the each of the Company and the Guarantor makes no this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with respect information furnished in writing to the Company or the Guarantor by an Underwriter through a Representative expressly for use therein. The Mellon Incorporated Documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading; any further Mellon Incorporated Documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain 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; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Agent furnished in writing to the Company or the Guarantor in writing by such Agent an Underwriter through a Representative expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule C hereto. The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder, and each of the Registration Statement and the Prospectus and any amendment or supplement thereto does not and will not, in the case of the Registration Statement, as of the applicable effective date as to each part of the Registration Statement, contain 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 in the case of the Prospectus, as of the applicable filing date and as of the Closing Date (as defined in Section 3 hereof), contain 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, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through a Representative expressly for use therein. Each of the Guarantor and the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania, and has the corporate power and authority to own its properties and conduct its business as described in each of the Pricing Prospectus and the Prospectus; each of the Guarantor’s wholly owned banking subsidiaries, as described in each of the Pricing Prospectus and the Prospectus, has been duly established and is validly existing as a national banking association or a state bank, as the case may be, under the laws of the jurisdiction of its formation; and each other wholly owned subsidiary of the Guarantor has been duly incorporated (or formed) and is validly existing as a corporation (or applicable entity) in good standing under the laws of its jurisdiction of incorporation (or formation). The Guarantor has an authorized equity capitalization as set forth in each of the Pricing Prospectus and the Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by the Guarantor, free and clear of all liens, encumbrances, equities or claims. The Guarantor has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such Time qualification, or is subject to no material liability or disability by reason of Sale Information.failure to be so qualified in any such jurisdiction. All of the issued and outstanding capital stock of each subsidiary of the Guarantor has been duly authorized and validly issued, is fully paid and non-assessable (except, in the case of each of its national bank subsidiaries, as provided in 12 U.S.C. Section 55, as amended), and, except for directors’ qualifying shares, all issued and outstanding capital stock of each such subsidiary owned by the Guarantor is owned by the Guarantor, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity. There are no legal or governmental proceedings pending to which the Company, the Guarantor or any of its subsidiaries is a party or of which any property of the Company, the Guarantor or any of its subsidiaries is the subject, other than as set forth in each of the Pricing Prospectus and the Prospectus, which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate have a material adverse effect on the financial position, shareholders’ equity or results of operation of the Company or the Guarantor and its subsidiaries on a consolidated basis; and to the best of each of the Company’s and the Guarantor’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. This Agreement has been duly authorized, executed and delivered by the Company and by the Guarantor. The Securities have been duly authorized, and, when issued and delivered pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Securities, the Guarantees, and the Indenture will conform to the descriptions thereof contained in the Prospectus. The Guarantees have been duly authorized, and when delivered pursuant to this Agreement, will have been duly endorsed on the Securities and executed, and, upon due execution, authentication and delivery of the Securities pursuant to this Agreement, the Guarantees will have been duly delivered and will constitute valid and legally binding obligations of the Guarantor entitled to the benefits provided by the Indenture. The Indenture has been duly authorized, executed and delivered by the Guarantor and the Company and constitutes a valid and legally binding instrument, enforceable against the Company and the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, moratorium, insolvency, fraudulent transfer, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act. Except as contemplated in the Pricing Prospectus and the Prospectus, subsequent to the respective dates as of which information is given in each of the Pricing Prospectus and the Prospectus, neither the Guarantor nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, that are material to the Guarantor and its subsidiaries, and there has not been any material change, on a consolidated basis, in the capital stock or long-term debt of the Guarantor and its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Guarantor and its subsidiaries. The issue and sale of the Securities and the compliance by the Company and the Guarantor with all of the provisions of the Securities, the Guarantees, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company, the Guarantor or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of its subsidiaries is a party or by which the Company, the Guarantor or any of its subsidiaries is bound or to which any of the property or assets of the Company, the Guarantor or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation or the By-Laws of the Company or of the Guarantor, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, the Guarantor or any of its subsidiaries or any of their properties. No consent, approval, authorization, order, registration or qualification of or with any court or any regulatory authority or other governmental body is required for the issue and sale of the Securities, the execution and delivery of the Guarantees or the consummation of the other transactions contemplated by this Agreement, the Guarantees or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and the exemption of the Company from the
Appears in 1 contract
Representations and Warranties of the Company and the Guarantor. Unless otherwise indicated, each of the The Company and the Guarantor jointly represent and severally represents and warrants warrant to, and agrees agree with, the several Underwriters that as of the date hereof and as of the applicable Delivery Date (as defined below) (each Agent referred to as follows:a "Representation Date"):
(a) A Registration Statement on Form S-3 relating to the Program Securities The Company and the Guarantees has been Guarantor have filed with the Securities and Exchange Commission (the “"Commission”") joint registration statements (Nos. 333-14865, ▇▇▇-▇▇▇▇▇-▇▇, 33-50049 and 33-50049-01) relating to the Debt Securities and the guarantees thereof of the Guarantor (the "Guarantees") and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the “"1933 Act”"), and has have filed such amendments thereto as may have been required to the date hereof. Such registration statements (as so amended) have been declared effective by the Commission and no order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or the Guarantor or any offering of the Program Securities and the Guarantees has been initiated or threatened by the Commission. Such registration statementstatements, as amended or supplemented from time to timethe date hereof, including on the Closing Date (exhibits thereto, schedules thereto, if any, and the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are hereinafter collectively referred to as defined in the "Registration Statement", and the prospectus constituting a part of such Registration Statement, as amended and as supplemented as contemplated by Section 6 below)4 to reflect the terms of the Securities and the terms of the offering thereof, including the documents incorporated therein by reference is hereinafter referred to as the “Registration Statement” and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements, prospectus addenda, index supplements, underlying supplements and/or final pricing supplements setting forth the terms of the Program Securities and the Guarantees, including all material incorporated by reference therein, in the form in which such prospectus, prospectus supplement, product supplement(s), prospectus addenda, index supplement(s), underlying supplement(s) and/or final pricing supplement(s) have most recently been filed, or transmitted for filing, with the Commission therein pursuant to paragraph (b) Item 12 of Rule 424 of Form S-3 under the rules and regulations adopted by the Commission thereunder1933 Act, is hereinafter referred to as the “"Prospectus”". A "preliminary prospectus" shall be deemed to refer to any prospectus or prospectus supplement that omitted information to be included upon pricing in a form of prospectus or prospectus supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act, that was used after the Registration Statement became effective and prior to the date of this Agreement. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement to the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
(b) On At the date it most recently respective times the Registration Statement and any post-effective amendments thereto became effective under and, if an annual report on Form 10-K has been filed by the ActGuarantor with the Commission subsequent to effectiveness of the Registration Statement or any such post-effective amendment, then at the time of the most recent such filing, the Registration Statement and any post-effective amendments thereto conformed in all material respects to the requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture "1939 Act”) "), and the rules and regulations adopted by of the Commission under the Act and the Trust Indenture Act (the “"Rules and Regulations”") and did not include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the Closing each Representation Date, the Registration Statement Statement, any post-effective amendment thereto and the Prospectus conforms or will conform in all material respects to the requirements of the 1933 Act, the Trust Indenture 1939 Act and the Rules and Regulations and (i) the Registration Statement, as amended as of any such time, does not or will not include 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 and (ii) the Prospectus, as supplemented as of any such time, does not or will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company or the Guarantor by any Agent specifically for use therein.
(c) The Time of Sale Information at each Time of Sale and at the Closing Date will not contain any untrue statement of a material fact or 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; provided , except that the foregoing does not apply to statements in or omissions from any such documents based upon written information furnished to the Company or the Guarantor by any Underwriter, or on behalf of any Underwriter by the Representatives, specifically for use therein or based upon the Statement of Eligibility of the Trustee under the Indenture or to statements in or omissions from such Statement of Eligibility. Each preliminary prospectus and prospectus filed as part of the Registration Statement as originally filed or as part of an amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the Rules and Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities was, at the time of such delivery, identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1934 Act and the Rules and Regulations, as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at each Representation Date, did not and will not contain 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.
(d) The financial statements of the Guarantor included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Guarantor and its consolidated subsidiaries at the dates indicated and the statement of operations, shareowners' equity and cash flows of the Guarantor and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(e) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the financial condition or results of operations of the Company or of the Guarantor and its subsidiaries, taken as a whole, (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company or by the Guarantor or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company or the Guarantor and its subsidiaries, taken as a whole, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company or the Guarantor on any class of its capital stock, except for regular quarterly dividends on U S WEST Communications Group Common Stock, par value $.01 per share, in amounts that are consistent with past practice and regular dividends on the Guarantor's preferred stock.
(f) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(g) The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor makes no representation and warranty (assuming the due authorization, execution and delivery by the Trustee) constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with respect to any statements or omissions made in reliance upon and in conformity with information its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(h) The Securities have been duly authorized and, at the Delivery Date, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(i) The Guarantees have been duly authorized and, at the Delivery Date, will have been duly executed by the Guarantor and, when issued and delivered in the manner provided for in the Indenture, will constitute legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(j) The Securities, the Guarantees and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(k) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein (including, without limitation, the issuance and sale of the Securities and the Guarantees) and compliance by the Company and the Guarantor with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any Agent furnished lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any subsidiary of the Guarantor pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Guarantor or any subsidiary of the Guarantor is subject (collectively, "Agreements and Instruments") (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or bylaws of the Company, the Guarantor or any subsidiary of the Guarantor or, to the best knowledge of the Company and the Guarantor, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any subsidiary the Guarantor or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness of the Company, the Guarantor or any subsidiary of the Guarantor (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any subsidiary of the Guarantor.
(l) Except as disclosed in the Registration Statement, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or to which the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor is subject, before or by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor or the consummation of the transactions contemplated by this Agreement or the Indenture or the performance by the Company or the Guarantor of their respective obligations thereunder.
(m) The Guarantor and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Guarantor and its subsidiaries are in writing by compliance with the terms and conditions of all such Agent expressly for use Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Time Governmental Licenses or the failure of Sale Informationsuch Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and neither the Guarantor nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
Appears in 1 contract
Sources: Underwriting Agreement (Us West Inc)
Representations and Warranties of the Company and the Guarantor. Unless otherwise indicated, each of the The Company and the Guarantor jointly represent and severally represents and warrants warrant to, and agrees agree with, the several Underwriters that as of the date hereof and as of the applicable Delivery Date (as defined below) (each Agent referred to as follows:a "Representation Date"):
(a) A Registration Statement on Form S-3 relating to the Program Securities The Company and the Guarantees has been Guarantor have filed with the Securities and Exchange Commission (the “"Commission”") a joint registration statement (Nos. 333-51907 and 333-51907-01) relating to the Debt Securities and the guarantees thereof of the Guarantor (the "Guarantees") and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the “"1933 Act”"), and have filed such amendments thereto as may have been required to the date hereof. Such registration statement (as so amended) has been declared effective by the Commission and no order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or the Guarantor or any offering of the Program Securities and the Guarantees has been initiated or threatened by the Commission. Such registration statement, as amended or supplemented from time to time, including on the Closing Date (as defined in Section 6 below)date hereof, including the documents incorporated therein by reference is hereinafter referred to as the “Registration Statement” exhibits thereto, schedules thereto, if any, and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements, prospectus addenda, index supplements, underlying supplements and/or final pricing supplements setting forth the terms of the Program Securities and the Guarantees, including all material documents incorporated by reference therein, in the form in which such prospectus, prospectus supplement, product supplement(s), prospectus addenda, index supplement(s), underlying supplement(s) and/or final pricing supplement(s) have most recently been filed, or transmitted for filing, with the Commission therein pursuant to paragraph (b) Item 12 of Rule 424 of Form S-3 under the rules and regulations adopted by the Commission thereunder1933 Act, is hereinafter referred to as the “"Registration Statement", and the prospectus constituting a part of such Registration Statement, as amended and as supplemented as contemplated by Section 4 to reflect the terms of the Securities and the terms of the offering thereof, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is hereinafter referred to as the "Prospectus”". A "preliminary prospectus" shall be deemed to refer to any prospectus or prospectus supplement that omitted information to be included upon pricing in a form of prospectus or prospectus supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act, that was used after the Registration Statement became effective and prior to the date of this Agreement. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any amendment or supplement to the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
(b) On At the date it most recently respective times the Registration Statement and any post-effective amendments thereto became effective under and, if an annual report on Form 10-K has been filed by the ActGuarantor with the Commission subsequent to effectiveness of the Registration Statement or any such post-effective amendment, then at the time of the most recent such filing, the Registration Statement and any post-effective amendments thereto conformed in all material respects to the requirements of the 1933 Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture "1939 Act”) "), and the rules and regulations adopted by of the Commission under the Act and the Trust Indenture Act (the “"Rules and Regulations”") and did not include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the Closing each Representation Date, the Registration Statement Statement, any post-effective amendment thereto and the Prospectus conforms or will conform in all material respects to the requirements of the 1933 Act, the Trust Indenture 1939 Act and the Rules and Regulations and (i) the Registration Statement, as amended as of any such time, does not or will not include 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 and (ii) the Prospectus, as supplemented as of any such time, does not or will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company or the Guarantor by any Agent specifically for use therein.
(c) The Time of Sale Information at each Time of Sale and at the Closing Date will not contain any untrue statement of a material fact or 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; provided , except that the foregoing does not apply to statements in or omissions from any such documents based upon written information furnished to the Company or the Guarantor by any Underwriter, or on behalf of any Underwriter by the Representatives, specifically for use therein or based upon the Statement of Eligibility of the Trustee under the Indenture or to statements in or omissions from such Statement of Eligibility. Each preliminary prospectus and prospectus filed as part of the Registration Statement as originally filed or as part of an amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the Rules and Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities was, at the time of such delivery, identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act and the 1934 Act and the Rules and Regulations, as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at each Representation Date, did not and will not contain 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.
(d) The financial statements of the Guarantor included in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Guarantor and its consolidated subsidiaries at the dates indicated and the statement of operations, shareowners' equity and cash flows of the Guarantor and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(e) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the financial condition or results of operations of the Company or of the Guarantor and its subsidiaries, taken as a whole, (a "Material Adverse Effect"), (B) there have been no transactions entered into by the Company or by the Guarantor or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company or the Guarantor and its subsidiaries, taken as a whole, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company or the Guarantor on any class of its capital stock, except for regular quarterly dividends on the Guarantor's common stock, par value $.01 per share, in amounts that are consistent with past practice and, prior to the Separation referred to therein, regular dividends on the Guarantor's preferred stock.
(f) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(g) The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor makes no representation and warranty (assuming the due authorization, execution and delivery by the Trustee) constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with respect to any statements or omissions made in reliance upon and in conformity with information its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(h) The Securities have been duly authorized and, at the Delivery Date, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(i) The Guarantees have been duly authorized and, at the Delivery Date, will have been duly executed by the Guarantor and, when issued and delivered in the manner provided for in the Indenture, will constitute legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(j) The Securities, the Guarantees and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(k) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein (including, without limitation, the issuance and sale of the Securities and the Guarantees) and compliance by the Company and the Guarantor with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any Agent furnished lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any subsidiary of the Guarantor pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Guarantor or any subsidiary of the Guarantor is subject (collectively, "Agreements and Instruments") (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or bylaws of the Company, the Guarantor or any subsidiary of the Guarantor or, to the best knowledge of the Company and the Guarantor, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any subsidiary the Guarantor or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness of the Company, the Guarantor or any subsidiary of the Guarantor (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any subsidiary of the Guarantor.
(l) Except as disclosed in the Registration Statement, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or to which the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor is subject, before or by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor or the consummation of the transactions contemplated by this Agreement or the Indenture or the performance by the Company or the Guarantor of their respective obligations thereunder.
(m) The Guarantor and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the Guarantor and its subsidiaries are in writing by compliance with the terms and conditions of all such Agent expressly for use Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Time Governmental Licenses or the failure of Sale Informationsuch Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and neither the Guarantor nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
Appears in 1 contract