Representations and Warranties of the Company and the Guarantor. The Company and the Guarantor represent and warrant, jointly and severally, to, and agree with, the several Initial Purchasers that: (a) A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Company have been prepared by the Company. Such preliminary offering circular (the "Preliminary Offering Circular") and offering circular (the "Offering Circular"), as supplemented as of the date of this Agreement, are hereinafter collectively referred to as the "Offering Document." The Company has participated in conferences with the officers and other representatives of American Ref-Fuel Company LLC at which time the contents of the Offering Document and related matters, including the financial statements of American Ref-Fuel Company LLC contained in the Offering Document, were discussed. On the date of this Agreement, the Offering Document, including the information with respect to American Ref-Fuel and its subsidiaries, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Any information furnished by the Company for delivery to holders and prospective purchasers of the Offered Securities pursuant to Section 4.03 of the Indenture and in accordance with Rule 144A(d)(4) under the Securities Act (the "Additional Issuer Information") will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through CSFB specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. (b) No order or decree preventing the use of the Offering Document, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or the Guarantor, is contemplated. (c) Each of MSW and MSW Finance has been duly formed or incorporated, as the case may be, and is an existing limited liability company or corporation, as the case may be, in good standing under the laws of the State of Delaware, with power and authority (corporate or other) to own its properties and conduct its business as described in the Offering Document; and each of MSW and MSW Finance is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company, the Guarantor and their respective subsidiaries taken as a whole ("Material Adverse Effect"). (d) The Guarantor has been duly formed and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and the Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a Material Adverse Effect; all of the capital stock of the Guarantor has been issued in accordance with the applicable provisions of the certificate of incorporation of the Guarantor and, upon consummation of the Transactions, the capital stock of the Guarantor will be owned by MSW free from liens, encumbrances and defects or any preemptive or similar right, other than liens in favor of the Collateral Agent pursuant to the Security Agreement. (e) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor. (f) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Indenture. The Indenture has been duly and validly authorized by the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Indenture complies in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Indenture will conform in all material respects to the description thereof in the Offering Document. (g) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery by the Company and the Guarantor, assuming due authorization, execution and delivery by the Initial Purchasers, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualifications that (i) the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and (ii) rights to indemnity and contribution thereunder may be limited by applicable law. The Registration Rights Agreement will conform in all material respects to the description thereof in the Offering Document. (h) The Company has all requisite corporate or limited liability power and authority to enter into the Escrow Agreement. In the event the Transactions do not close on the Closing Date, the Company will execute the Escrow Agreement. The Escrow Agreement will be duly and validly authorized by the Company, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Escrow Agent, will constitute the valid and legally binding obligations of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Escrow Agreement will conform in all material respects to the description thereof in the Offering Document. (i) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Collateral Agreements. The Collateral Agreements have been duly and validly authorized by the Company and the Guarantor, and upon their execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with their terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Collateral Agreements will conform in all material respects to the description thereof in the Offering Document. (j) MSW Merger and Parent have all requisite limited liability company power and authority to enter into the Merger Agreements. The Merger Agreements have been duly and validly authorized by MSW Merger and Parent, respectively, and upon their execution and delivery, will constitute the valid and legally binding obligations of MSW Merger and Parent, respectively, enforceable in accordance with their terms, subject to the qualification that the enforceability of MSW Merger's and Parent's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (k) Assuming the Contribution Agreement has been duly and validly authorized by UAE Ref-Fuel II Corp., upon its execution and delivery, the Contribution Agreement will constitute the valid and legally binding obligation of UAE Ref-Fuel II Corp., enforceable in accordance with its terms, subject to the qualification that the enforceability of UAE Ref-Fuel II Corp.'s obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (l) The Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Notes will conform in all material respects to the description thereof in the Offering Document. (m) The Exchange Notes have been duly and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Registration Rights Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (n) The Guarantee has been duly and validly authorized by the Guarantor and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the issuance of the Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Guarantee will conform in all material respects to the description thereof in the Offering Document. (o) The Exchange Guarantee has been duly and validly authorized by the Guarantor and if and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution and authentication of the Exchange Notes in accordance with the Indenture and the issuance and delivery of the Exchange Notes contemplated by the Registration Rights Agreement, will constitute a valid and legally binding obligation of the Guarantor, entitled to the benefits of the Indenture, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (p) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements, the Contribution Agreement and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, the Guarantor or their respective subsidiaries or their properties, or (ii) any agreement or instrument to which the Company, the Guarantor or their respective subsidiaries are a party or by which the Company, the Guarantor or their respective subsidiaries are bound or to which any of the properties of the Company, the Guarantor or their respective subsidiaries is subject, except as would not individually or in the aggregate have a Material Adverse Effect and except to the extent that any foreclosure on the Collateral by the Collateral Agent would violate the right of first refusal set forth in the limited liability company agreement of Ref-Fuel, or (iii) the charter or by-laws of the Company, the Guarantor or their respective subsidiaries. (q) Except as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Company, the Guarantor and any person that would give rise to a valid claim against the Company, the Guarantor or the Initial Purchasers for a brokerage commission, finder's fee or other like payment. (r) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements or the Contribution Agreement or in connection with the issuance or sale of the Offered Securities by the Company and the Guarantor, except (A) such as may be required under state securities laws, (B) the filing of the applicable Registration Statements with the Commission and the receipt of the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (C) any required filings to perfect the security interest in the Collateral, (D) the filing of the Certificates of Merger with the Secretary of State of the State of Delaware, (E) a
Appears in 1 contract
Representations and Warranties of the Company and the Guarantor. The Company and the Guarantor represent and warrant, jointly and severally, warrant to, and agree with, the several Initial Purchasers that:Underwriters that as of the date hereof and as of the applicable Delivery Date (as defined below) (each referred to as a "Representation Date"):
(a) A preliminary offering circular The Company and an offering circular the 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 Offered Debt Securities to be offered by and the Company have been prepared by guarantees thereof of the Company. Such preliminary offering circular Guarantor (the "Preliminary Offering CircularGuarantees") and the offering circular thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Offering Circular1933 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. Such registration statement, as amended to the date hereof, including the 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, 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, are hereinafter collectively referred to as the "Offering Document." The Company has participated in conferences with the officers and other representatives of American Ref-Fuel Company LLC at which time the contents of the Offering Document and related matters, including the financial statements of American Ref-Fuel Company LLC contained in the Offering Document, were discussed. On the date For purposes of this Agreement, all references to the Offering DocumentRegistration Statement, including 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) At the respective times the Registration Statement and any post-effective amendments thereto became effective and, if an annual report on Form 10-K has been filed by the Guarantor with respect the Commission subsequent to American Refeffectiveness of the Registration Statement or any such post-Fuel effective amendment, then at the time of the most recent such filing, the Registration Statement and its subsidiariesany post-effective amendments thereto conformed in all material respects to the requirements of the 1933 Act, does the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and regulations of the Commission (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 in order to make the statements thereintherein not misleading, and on each Representation Date, the Registration Statement, any post-effective amendment thereto and the Prospectus conforms or will conform in all material respects to the light requirements of the circumstances under which they were made1933 Act, not misleading. The preceding sentence the 1939 Act and the Rules and Regulations and (i) the Registration Statement, as amended as of any such time, does not apply 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 in therein not misleading and (ii) the Prospectus, as supplemented as of any such time, does not or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Any information furnished by the Company for delivery to holders and prospective purchasers of the Offered Securities pursuant to Section 4.03 of the Indenture and in accordance with Rule 144A(d)(4) under the Securities Act (the "Additional Issuer Information") will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence , except that the foregoing does not apply to statements in or omissions from the Offering Document any such documents based upon written information furnished to the Company or the Guarantor by any Initial Purchaser through CSFB Underwriter, or on behalf of any Underwriter by the Representatives, specifically for use therein, it being understood and agreed that therein or based upon the only such information is that described as such in Section 7(b) hereof.
(b) No order or decree preventing the use Statement of Eligibility of the Offering DocumentTrustee 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 any order asserting that filed pursuant to Rule 424 under the transactions contemplated by this Agreement are subject 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 registration requirements Underwriters for use in connection with the offering of the Securities Act has been issued and no proceeding for that purpose has commenced or is pending orwas, at the time of such delivery, identical to any electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the knowledge of the Company or the Guarantor, is contemplated.extent permitted by Regulation S-T.
(c) Each 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 MSW the 1933 Act and MSW Finance 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 duly formed or incorporated, as the case may be, and is an existing limited liability company or corporation, as the case may be, in good standing under the laws of the State of Delaware, with power and authority (corporate or other) to own its properties and conduct its business as described no material adverse change in the Offering Document; and each of MSW and MSW Finance is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a material adverse effect on the financial condition (financial or other), business, properties or results of operations of the Company, Company or of the Guarantor and their respective subsidiaries its subsidiaries, taken as a whole 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.
(d) The Guarantor has been duly formed and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and the Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a Material Adverse Effect; all of the capital stock of the Guarantor has been issued in accordance with the applicable provisions of the certificate of incorporation of the Guarantor and, upon consummation of the Transactions, the capital stock of the Guarantor will be owned by MSW free from liens, encumbrances and defects or any preemptive or similar right, other than liens in favor of the Collateral Agent pursuant to the Security Agreement.
(ef) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(fg) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Indenture. The Indenture has been duly authorized, executed and validly authorized delivered by each of the Company, will be duly Company and validly authorized by any Guarantor, the Guarantor and upon its execution and delivery, (assuming the due authorization, execution and delivery by the Trustee) constitutes the legal, will constitute the valid and legally binding obligations agreement of the Company and the Guarantor, Guarantor enforceable against each of them in accordance with its terms, subject to except as the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder enforcement thereof may be limited by bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfertransfers), reorganization, moratorium and or similar laws affecting enforcement of general applicability relating to or affecting creditors' rights generally and except as enforcement thereof is subject to general principles of equity principles. The Indenture complies (regardless of whether enforcement is considered in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"a proceeding in equity or at law). The Indenture will conform in all material respects to the description thereof in the Offering Document.
(g) The Company ; and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Registration Rights Agreement. The Registration Rights Agreement Indenture has been duly and validly authorized by qualified under the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery by the Company and the Guarantor, assuming due authorization, execution and delivery by the Initial Purchasers, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualifications that (i) the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and (ii) rights to indemnity and contribution thereunder may be limited by applicable law. The Registration Rights Agreement will conform in all material respects to the description thereof in the Offering Document▇▇▇▇ ▇▇▇.
(h) The Company has all requisite corporate or limited liability power and authority to enter into Securities have been duly authorized and, at the Escrow Agreement. In the event the Transactions do not close on the Closing Delivery Date, will have been duly executed by the Company will execute the Escrow Agreement. The Escrow Agreement will be duly and validly authorized by the Company, and upon its execution and delivery and, assuming due authorizationwhen authenticated, execution issued and delivery by delivered in the Trustee manner provided for in the Indenture and delivered against payment of the Escrow Agentpurchase price therefor as provided in this Agreement, will constitute the legal, valid and legally binding obligations of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Escrow Agreement will conform in all material respects to the description thereof in the Offering Document.
(i) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Collateral Agreements. The Collateral Agreements have been duly and validly authorized by the Company and the Guarantor, and upon their execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with their terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Collateral Agreements will conform in all material respects to the description thereof in the Offering Document.
(j) MSW Merger and Parent have all requisite limited liability company power and authority to enter into the Merger Agreements. The Merger Agreements have been duly and validly authorized by MSW Merger and Parent, respectively, and upon their execution and delivery, will constitute the valid and legally binding obligations of MSW Merger and Parent, respectively, enforceable in accordance with their terms, subject to the qualification that the enforceability of MSW Merger's and Parent's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(k) Assuming the Contribution Agreement has been duly and validly authorized by UAE Ref-Fuel II Corp., upon its execution and delivery, the Contribution Agreement will constitute the valid and legally binding obligation of UAE Ref-Fuel II Corp., enforceable in accordance with its terms, subject to the qualification that the enforceability of UAE Ref-Fuel II Corp.'s obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(l) The Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to except as the qualification that the enforceability of the Company's obligations thereunder enforcement thereof may be limited by bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfertransfers), reorganization, moratorium and or similar laws affecting enforcement of general applicability relating to or affecting creditors' rights generally and except as enforcement thereof is subject to general principles of equity principles. The Notes (regardless of whether enforcement is considered in a proceeding in equity or at law), and will conform in all material respects to the description thereof be in the Offering Document.
(m) The Exchange Notes have been duly form contemplated by, and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Registration Rights Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of 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, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(n) The Guarantee has been duly and validly authorized by the Guarantor and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the issuance of the Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute a legal, valid and legally binding obligation obligations of the Guarantor, enforceable against the Guarantor in accordance with its their terms, subject to except as the qualification that the enforceability of the Guarantor's obligations thereunder enforcement thereof may be limited by bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfertransfers), reorganization, moratorium and or similar laws affecting enforcement of general applicability relating to or affecting creditors' rights generally and except as enforcement thereof is subject to general principles of equity principles. (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 Guarantee Securities, the Guarantees and the Indenture will conform in all material respects to the description thereof respective statements relating thereto contained in the Offering DocumentProspectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(o) The Exchange Guarantee has been duly and validly authorized by the Guarantor and if and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution and authentication of the Exchange Notes in accordance with the Indenture and the issuance and delivery of the Exchange Notes contemplated by the Registration Rights Agreement, will constitute a valid and legally binding obligation of the Guarantor, entitled to the benefits of the Indenture, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(pk) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements, the Contribution Agreement and the consummation of the transactions contemplated herein (including, without limitation, the issuance and sale of the Offered Securities and the Guarantees) and compliance by the Company and the Guarantor with the terms their respective obligations hereunder have been duly authorized by all necessary corporate action and provisions thereof 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 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 breach or Material Adverse Effect), nor will such action result in any violation of any the provisions of the terms charter or bylaws of the Company, the Guarantor or any subsidiary of the Guarantor or, to the best knowledge of the Company and provisions ofthe Guarantor, or constitute a default underany applicable law, (i) any statute, any rule, regulation regulation, judgment, order, writ or order decree of any governmental agency government, government instrumentality or body or any court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any subsidiary the Guarantor or any of their respective subsidiaries assets, properties or their propertiesoperations. 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 (iior 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 agreement subsidiary of the Guarantor.
(l) Except as disclosed in the Registration Statement, there is not pending or instrument threatened any action, suit, proceeding, inquiry or investigation to which the Company, the Guarantor or their respective subsidiaries are any subsidiary of the Guarantor is a party or by to which the Companyassets, the Guarantor properties or their respective subsidiaries are bound or to which any of the properties operations of the Company, the Guarantor or their respective subsidiaries any subsidiary of the Guarantor is subject, except as would not individually before or by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in the aggregate have a Material Adverse Effect or which might reasonably be expected to materially and except to adversely affect the extent that any foreclosure on the Collateral by the Collateral Agent would violate the right of first refusal set forth in the limited liability company agreement of Ref-Fuelassets, properties or (iii) the charter or by-laws operations of the Company, the Guarantor or their respective subsidiaries.
(q) Except as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Company, the Guarantor and any person that would give rise to a valid claim against the Company, subsidiary of the Guarantor or the Initial Purchasers for a brokerage commission, finder's fee or other like payment.
(r) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements or the Contribution Agreement Indenture or in connection with the issuance or sale of the Offered Securities 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 Guarantorappropriate 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 compliance with the terms and conditions of all such Governmental Licenses, except (A) such as may be required under state securities lawswhere the failure so to comply would not, (B) singly or in the filing aggregate, have a Material Adverse Effect; all of the applicable Registration Statements with Governmental Licenses are valid and in full force and effect, except when the Commission and the receipt invalidity of the order of the Commission declaring the Exchange Offer Registration Statement such Governmental Licenses or the Shelf Registration Statement effectivefailure of such 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, (C) any required filings to perfect the security interest singly or in the Collateralaggregate, (D) if the filing subject of the Certificates of Merger with the Secretary of State of the State of Delawarean unfavorable decision, (E) aruling or finding, would result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Company and the Guarantor. The Company and the Guarantor represent and warrant, jointly and severally, to, and agree with, the several Initial Purchasers Purchaser that:
(a) A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Company have been prepared by the Company. Such preliminary offering circular (the "Preliminary Offering Circular") and offering circular (the "Offering Circular"), as supplemented as of the date of this Agreement, are hereinafter collectively referred to as the "Offering Document." The Company has participated in conferences with the officers and other representatives of American Ref-Fuel Company LLC at which time the contents of the Offering Document and related matters, including the financial statements of American Ref-Fuel Company LLC contained in the Offering Document, were discussed. On the date of this Agreement, the Offering Document, including the information with respect to American Ref-Fuel and its subsidiaries, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through Credit Suisse First Boston LLC ("CSFB") CSFB specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Any information furnished by the Company for delivery to holders and prospective purchasers of the Offered Securities pursuant to Section 4.03 of the Indenture and in accordance with Rule 144A(d)(4) under the Securities Act (the "Additional Issuer Information") will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through CSFB specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof.
(b) No order or decree preventing the use of the Offering Document, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or the Guarantor, is contemplated.
(c) Each of MSW and MSW Finance has been duly formed or incorporated, as the case may be, and is an existing limited liability company or corporation, as the case may be, in good standing under the laws of the State of Delaware, with power and authority (corporate or other) to own its properties and conduct its business as described in the Offering Document; and each of MSW and MSW Finance is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company, the Guarantor and their respective subsidiaries taken as a whole ("Material Adverse Effect").
(d) The Guarantor has been duly formed and is an existing corporation limited liability company in good standing under the laws of the State of Delaware, with corporate limited liability company power and authority to own its properties and conduct its business as described in the Offering Document; and the Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not individually or in the aggregate have a Material Adverse Effect; all of the capital stock membership interests of the Guarantor has have been issued in accordance with the applicable provisions of the certificate of incorporation limited liability company agreement of the Guarantor and, upon consummation of the TransactionsAcquisition, the capital stock membership interests of the Guarantor Guarantor, directly or through subsidiaries, will be owned by MSW free from liens, encumbrances and defects or any preemptive or similar right, other than liens in favor of the Collateral Agent pursuant to the Security Agreement.
(e) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.
(f) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Indenture. The Indenture has been duly and validly authorized by the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Indenture complies in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Indenture will conform in all material respects to the description thereof in the Offering Document.
(g) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery by the Company and the Guarantor, assuming due authorization, execution and delivery by the Initial PurchasersPurchaser, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualifications that (i) the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and (ii) rights to indemnity and contribution thereunder may be limited by applicable law. The Registration Rights Agreement will conform in all material respects to the description thereof in the Offering Document.
(h) The Company has all requisite corporate or limited liability power and authority to enter into the Escrow Agreement. In the event the Transactions do Acquisition does not close on the Closing Date, the Company will execute the Escrow Agreement. The Escrow Agreement will be duly and validly authorized by the Company, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Escrow Agent, will constitute the valid and legally binding obligations of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Escrow Agreement will conform in all material respects to the description thereof in the Offering Document.
(i) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Collateral Agreements. The Collateral Agreements have been duly and validly authorized by the Company and the Guarantor, and upon their execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with their terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Collateral Agreements will conform in all material respects to the description thereof in the Offering Document.
(j) MSW Merger and Parent have all requisite limited liability company power and authority to enter into the Merger Agreements. The Merger Agreements have been duly and validly authorized by MSW Merger and Parent, respectively, and upon their execution and delivery, will constitute the valid and legally binding obligations of MSW Merger and Parent, respectively, enforceable in accordance with their terms, subject to the qualification that the enforceability of MSW Merger's and Parent's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(k) Assuming the Contribution Agreement has been duly and validly authorized by UAE Ref-Fuel II Corp., upon its execution and delivery, the Contribution Agreement will constitute the valid and legally binding obligation of UAE Ref-Fuel II Corp., enforceable in accordance with its terms, subject to the qualification that the enforceability of UAE Ref-Fuel II Corp.'s obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(l) The Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers Purchaser against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Notes will conform in all material respects to the description thereof in the Offering Document.
(mk) The Exchange Notes have been duly and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Registration Rights Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(nl) The Guarantee has been duly and validly authorized by the Guarantor and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the issuance of the Notes in the sale to the Initial Purchasers Purchaser contemplated by this Agreement, will constitute a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Guarantee will conform in all material respects to the description thereof in the Offering Document.
(om) The Exchange Guarantee has been duly and validly authorized by the Guarantor and if and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution and authentication of the Exchange Notes in accordance with the Indenture and the issuance and delivery of the Exchange Notes contemplated by the Registration Rights Agreement, will constitute a valid and legally binding obligation of the Guarantor, entitled to the benefits of the Indenture, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(pn) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do Acquisition does not close on the Closing Date), the Collateral Agreements, the Merger Agreements, the Contribution Agreement Agreements and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, the Guarantor or their respective subsidiaries or their properties, or (ii) any agreement or instrument to which the Company, the Guarantor or their respective subsidiaries are a party or by which the Company, the Guarantor or their respective subsidiaries are bound or to which any of the properties of the Company, the Guarantor or their respective subsidiaries is subject, except as would not individually or in the aggregate have a Material Adverse Effect and except to the extent that any foreclosure on the Collateral by the Collateral Agent would violate the right of first refusal set forth in the limited liability company agreement of Duke/UAE Ref-FuelFuel LLC, or (iii) the charter or by-laws of the Company, the Guarantor or their respective subsidiaries.
(qo) Except as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Company, the Guarantor and any person that would give rise to a valid claim against the Company, the Guarantor or the Initial Purchasers Purchaser for a brokerage commission, finder's fee or other like payment.
(rp) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do Acquisition does not close on the Closing Date), ) or the Collateral Agreements, the Merger Agreements or the Contribution Agreement or in connection with the issuance or sale of the Offered Securities by the Company and the Guarantor, except (A) such as may be required under state securities laws, (B) the filing of the applicable Registration Statements with the Commission and the receipt of the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (C) any required filings to perfect the security interest in the Collateral, Collateral or (D) any consent, approval, authorization, filing, notification or other action that either has been or prior to the filing Closing Date will be obtained or made or which, if not made, would not individually or in the aggregate have a Material Adverse Effect.
(q) The Company, the Guarantor and their respective subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company, the Guarantor and their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(r) No labor dispute with the employees of the Certificates of Merger with Company, the Secretary of State Guarantor or their respective subsidiaries exists or, to the knowledge of the State Company or the Guarantor is imminent that could reasonably be expected to have a Material Adverse Effect.
(s) The Company, the Guarantor and their respective subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of Delaware, (E) ainfringement of or conflict with asserted rights of others with respec
Appears in 1 contract
Representations and Warranties of the Company and the Guarantor. The Each of the Company and the Guarantor represent and warrantGuarantor, jointly and severally, represents and warrants to, and agree agrees with, the several Initial Purchasers that:
(a) A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Company Purchasers have been prepared by the Company. Such preliminary offering circular (the "Preliminary Offering Circular") and offering circular (the "Offering Circular"), as supplemented as of the date of this Agreement, together with the documents listed in Schedule B hereto and any other document approved by the Company or the Guarantor for use in connection with the contemplated resale of the Offered Securities are hereinafter collectively referred to as the "Offering Document." The Company has participated in conferences with the officers and other representatives of American Ref-Fuel Company LLC at which time the contents of the Offering Document and related matters, including the financial statements of American Ref-Fuel Company LLC contained in the Offering Document, were discussed". On the date of this Agreement, the Offering Document, including the information with respect to American Ref-Fuel and its subsidiaries, Document 2 does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through Credit Suisse First Boston LLC Corporation ("CSFBCSFBC") specifically for use therein, . it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Any information furnished by Except as disclosed in the Company for delivery to holders and prospective purchasers Offering Document, on the date of this Agreement, the Offered Securities pursuant to Section 4.03 of the Indenture and in accordance Guarantor's Annual Report on Form 10-K most recently filed with Rule 144A(d)(4) under the Securities Act and Exchange Commission (the "Additional Issuer InformationCommission") will and all subsequent reports (collectively, the "Exchange Act Reports") which have been filed by the Guarantor with the Commission or sent to stockholders pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements Such documents, when they were filed with the Commission, conformed in or omissions from the Offering Document based upon written information furnished all material respects to the Company by any Initial Purchaser through CSFB specifically for use therein, it being understood requirements of the Exchange Act and agreed that the only such information is that described as such in Section 7(b) hereofrules and regulations of the Commission thereunder.
(b) No order or decree preventing the use of the Offering Document, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the The Company or the Guarantor, is contemplated.
(c) Each of MSW and MSW Finance has been duly formed or incorporated, as the case may be, incorporated and is an existing limited liability company or corporation, as the case may be, in good standing corporation under the laws of the State of Delaware, with power and authority (corporate or other) to own its properties and conduct its business as described in the Offering Document; and each of MSW and MSW Finance the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify to be so qualified in good standing would not reasonably be expected to have, individually or in the aggregate have aggregate, a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company, the Guarantor and their respective the Guarantor's subsidiaries taken as a whole ("Material Adverse Effect").
(dc) The Guarantor has been duly formed incorporated and is an existing corporation in good standing public limited company under the laws of the State Republic of DelawareIreland, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and the Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify to be so qualified in good standing would not reasonably be expected to have, individually or in the aggregate have aggregate, a Material Adverse Effect.
(d) The Company has no subsidiaries. Each subsidiary of the Guarantor (other than the Company) has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and each subsidiary of the Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify to be in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Guarantor Guarantor, including the Company, has been duly authorized and validly issued in accordance with the applicable provisions of the certificate of incorporation of the Guarantor and, upon consummation of the Transactions, and is fully paid and nonassessable; and the capital stock of each subsidiary (including the Guarantor will be Company) owned by MSW the Guarantor, directly or through subsidiaries, is owned free from liens, encumbrances and defects or any preemptive or similar rightdefects. Schedule C sets forth a true, other than liens in favor correct and complete list of all subsidiaries of the Collateral Agent pursuant to the Security AgreementGuarantor.
(e) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.
(f) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Indenture. The Indenture has been duly authorized; the Offered Securities have been duly authorized; and validly authorized by when the CompanyOffered Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below), will be duly and validly authorized by any Guarantor, and upon its execution and delivery, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Indenture complies in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform in all material respects to the description thereof contained in the Offering Document.
(g) The Company Document and the Guarantor have all requisite corporate or limited liability company power Indenture and authority to enter into the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by the Company, will be duly and validly authorized by any Guarantor, and upon its execution and delivery by the Company and the Guarantor, assuming due authorization, execution and delivery by the Initial Purchasers, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with its terms, subject to the qualifications that (i) the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and (ii) rights to indemnity and contribution thereunder may be limited by applicable law. The Registration Rights Agreement will conform in all material respects to the description thereof in the Offering Document.
(h) The Company has all requisite corporate or limited liability power and authority to enter into the Escrow Agreement. In the event the Transactions do not close on the Closing Date, the Company will execute the Escrow Agreement. The Escrow Agreement will be duly and validly authorized by the Company, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Escrow Agent, will constitute the valid and legally binding obligations of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Escrow Agreement will conform in all material respects to the description thereof in the Offering Document.
(i) The Company and the Guarantor have all requisite corporate or limited liability company power and authority to enter into the Collateral Agreements. The Collateral Agreements have been duly and validly authorized by the Company and the Guarantor, and upon their execution and delivery and, assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute the valid and legally binding obligations of the Company and the Guarantor, enforceable in accordance with their terms, subject to the qualification that the enforceability of the Company's and the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Collateral Agreements will conform in all material respects to the description thereof in the Offering Document.
(j) MSW Merger and Parent have all requisite limited liability company power and authority to enter into the Merger Agreements. The Merger Agreements have been duly and validly authorized by MSW Merger and Parent, respectively, and upon their execution and delivery, will constitute the valid and legally binding obligations of MSW Merger and Parent, respectively, enforceable in accordance with their terms, subject to the qualification that the enforceability of MSW Merger's and Parent's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(k) Assuming the Contribution Agreement has been duly and validly authorized by UAE Ref-Fuel II Corp., upon its execution and delivery, the Contribution Agreement will constitute the valid and legally binding obligation of UAE Ref-Fuel II Corp., enforceable in accordance with its terms, subject to the qualification that the enforceability of UAE Ref-Fuel II Corp.'s obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(l) The Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and such Offered Securities will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Notes will conform in all material respects to the description thereof in the Offering Document.
(m) The Exchange Notes have been duly and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Registration Rights Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(n) The Guarantee has been duly and validly authorized by the Guarantor and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the issuance of the Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Guarantee will conform in all material respects to the description thereof in the Offering Document.
(o) The Exchange Guarantee has been duly and validly authorized by the Guarantor and if and when duly executed and delivered by the Guarantor in accordance with the terms of the Indenture and upon the due execution and authentication of the Exchange Notes in accordance with the Indenture and the issuance and delivery of the Exchange Notes contemplated by the Registration Rights Agreement, will constitute a valid and legally binding obligation of the Guarantor, entitled to the benefits of the Indenture, enforceable against the Guarantor in accordance with its terms, subject to the qualification that the enforceability of the Guarantor's obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(p) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements, the Contribution Agreement and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, the Guarantor or their respective subsidiaries or their properties, or (ii) any agreement or instrument to which the Company, the Guarantor or their respective subsidiaries are a party or by which the Company, the Guarantor or their respective subsidiaries are bound or to which any of the properties of the Company, the Guarantor or their respective subsidiaries is subject, except as would not individually or in the aggregate have a Material Adverse Effect and except to the extent that any foreclosure on the Collateral by the Collateral Agent would violate the right of first refusal set forth in the limited liability company agreement of Ref-Fuel, or (iii) the charter or by-laws of the Company, the Guarantor or their respective subsidiaries.
(q) Except as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Company, the Guarantor and any person that would give rise to a valid claim against the Company, the Guarantor or the Initial Purchasers for a brokerage commission, finder's fee or other like payment.
(r) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Indenture, the Registration Rights Agreement, the Escrow Agreement (in the event the Transactions do not close on the Closing Date), the Collateral Agreements, the Merger Agreements or the Contribution Agreement or in connection with the issuance or sale of the Offered Securities by the Company and the Guarantor, except (A) such as may be required under state securities laws, (B) the filing of the applicable Registration Statements with the Commission and the receipt of the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective, (C) any required filings to perfect the security interest in the Collateral, (D) the filing of the Certificates of Merger with the Secretary of State of the State of Delaware, (E) a,
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