Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors, jointly and severally, represent and warrant to, and agree with, the Initial Purchasers that: (a) As of their respective dates, the Preliminary Offering Memorandum did not and the Offering Memorandum does not, and on the Closing Date the Offering Memorandum 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 Preliminary Offering Memorandum or the Offering Memorandum based upon written information furnished to the Company by Lehman Brothers Inc. specifically for use therein, it being understoo▇ ▇▇▇ agreed that the only such information is that described as such in Section 8(e) hereof. Except as disclosed in the Offering Memorandum, on the date of this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed by the Company with the Commission or sent to shareholders pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") do not, and on the Closing Date the Exchange Act Reports will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. (b) The Company and each of the Subsidiary Guarantors have been duly organized and are validly existing and in good standing under the laws of their respective jurisdiction of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engaged, except where the failure to so qualify would not be reasonably expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); and none of the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant S▇▇▇▇▇▇▇ry", as such term is defined in the Act. (c) On the date of issuance of the Exchange Notes, the Indenture will conform to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. (d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Offering Memorandum, the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation. (f) The execution, delivery and performance by the Company and the Subsidiary Guarantors of the Operative Documents and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby (the "Transactions") will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors is subject, except for such conflicts, breaches, violations or defaults that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (ii) result in any violation of the provisions of the charter or by-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result in the imposition or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result in the suspension, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization. (g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors. (h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or as do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term is defined in the Indenture) and as otherwise set forth in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors. (i) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. (j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened. (k) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect. (l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law. (m) Except as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiary Guarantors is a party or of which any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely to the Company or any of the Subsidiary Guarantors, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (n) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company. (o) Neither the Company nor any of the Subsidiary Guarantors has sustained, since the date of the latest financial statements included or incorporated by reference in the Offering Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and the Subsidiary Guarantors taken as a whole, other than as set forth or contemplated in the Offering Memorandum. (p) The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exc
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company Each of the Company, and as regards itself only, each of the Subsidiary Guarantors, jointly represents and severally, represent and warrant to, and agree with, warrants to the Initial Purchasers Purchaser that:
(a) As of their respective dates, the The Preliminary Offering Memorandum did not and the Offering Memorandum does have been prepared in connection with the Exempt Resales. The Preliminary Offering Memorandum as of its date did not, and on the Offering Memorandum as of its date does not and as of the Closing Date the Offering Memorandum will not, include and any amendment or supplement thereto will not, contain 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 , except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from in the Preliminary Offering Memorandum or the Offering Memorandum based (or any amendment or supplement thereto) made in reliance upon or in conformity with information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use therein. The Company and the Subsidiary Guarantors acknowledge for all purposes under this Agreement that the statements set forth in the fourth paragraph on the cover page and under the caption "Plan of Distribution" in the Offering Memorandum constitute the only written information furnished to the Company by Lehman Brothers Inc. specifically the Initial Purchaser expressly for use thereinin the Preliminary Offering Memorandum and the Offering Memorandum (or any amendment or supplement thereto). The Company has no knowledge of, it being understoo▇ ▇▇▇ agreed that and has not received any notifications with respect, to the only such information is that described as such in Section 8(e) hereof. Except as disclosed in issuance of any stop order preventing the use of any of the Preliminary Offering Memorandum or the Offering Memorandum, on or any amendment or supplement thereto, or any order asserting that any of the date of transactions contemplated by this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed by the Company with the Commission or sent to shareholders pursuant Agreement are subject to the Securities Exchange Act of 1934 (the "Exchange Act") do not, and on the Closing Date the Exchange Act Reports will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the registration requirements of the Exchange Act and the rules and regulations of the Commission thereunderSecurities Act.
(b) The Company and each of its direct and indirect subsidiaries (1) is and, immediately after giving effect to the Subsidiary Guarantors have been Hewi▇▇-▇▇▇▇▇▇ ▇▇▇uisition, will be, duly organized and are organized, validly existing and in good standing under the laws of their its respective jurisdiction of organizationincorporation, are (2) has, and immediately after giving effect to the Hewi▇▇-▇▇▇▇▇▇ ▇▇▇uisition, will have, requisite corporate power and authority to carry on its respective business as it is currently being conducted and to own, lease and operate its respective properties, and (3) is and, immediately after giving effect to the Hewi▇▇-▇▇▇▇▇▇ Acquisition, will be, duly qualified and in good standing as a foreign corporation registered to do business and are in good standing in each jurisdiction in which their respective the nature of its business or its ownership or lease leasing of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engaged, except where the failure to be so qualify qualified would not not, singly or in the aggregate, have a Material Adverse Effect. As used herein, "MATERIAL ADVERSE EFFECT" shall mean any effect or group of related or unrelated effects that (i) would be reasonably expected expected, individually or in the aggregate, to have result in a material adverse effect on the consolidated financial positionassets, stockholders' equityproperties, business, results of operations, business condition (financial or otherwise) or prospects of the Company and its subsidiaries subsidiaries, taken as a whole (a "Material Adverse Effect"); and none of whole, immediately after giving effect to the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant SHewi▇▇-▇▇▇▇▇▇ ▇▇ry"▇uisition, as such term is defined in the Act.
(c) On the date of issuance of the Exchange Notes, the Indenture will conform to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Offering Memorandum, the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration would interfere with, any court adversely affect or governmental agency or body is required for question the validity of (A) the execution, delivery and performance of any of the Operative Documents, the issuance and sale of the Senior Notes and the Subsidiary Guarantees or the consummation of this Agreement and the transactions contemplated by hereby, (B) the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors each of the Operative Documents its subsidiaries of its respective agreements and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and obligations under this Agreement or the consummation of the transactions contemplated hereby and thereby or (C) the "Transactions") will not (i) conflict with or result in a breach or violation of any consummation of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors is subject, except for such conflicts, breaches, violations or defaults that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (ii) result in any violation of the provisions of the charter or byHewi▇▇-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result in the imposition or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result in the suspension, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or as do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term is defined in the Indenture) and as otherwise set forth in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(i) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened.
(k) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect▇▇▇ ▇▇▇uisition.
(l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiary Guarantors is a party or of which any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely to the Company or any of the Subsidiary Guarantors, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company.
(o) Neither the Company nor any of the Subsidiary Guarantors has sustained, since the date of the latest financial statements included or incorporated by reference in the Offering Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and the Subsidiary Guarantors taken as a whole, other than as set forth or contemplated in the Offering Memorandum.
(p) The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exc
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors, jointly and severally, represent and warrant to, and agree with, to the Initial Purchasers that:
(a) As The Preliminary Offering Memorandum and Offering Memorandum with respect to the Senior Subordinated Notes have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of their respective dates, the Preliminary Offering Memorandum did not or the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or the Subsidiary Guarantors, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum does not, as of their respective dates and on the Closing Date the Offering Memorandum as of the Closing Date, did not or will not, include not at any time contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. The preceding sentence , except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum or the and Offering Memorandum based made in reliance upon written and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by Lehman Brothers Inc. specifically or on behalf of the Initial Purchasers expressly for use therein, it being understoo▇ ▇▇▇ agreed that the only such information is that described as such in Section 8(e.
(c) hereof. Except as disclosed in the Offering Memorandum, on the date of this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission The Indenture has been duly and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed validly authorized by the Company with and the Commission or sent to shareholders pursuant to Subsidiary Guarantors and, upon its execution and delivery by the Securities Exchange Act of 1934 (Company and the "Exchange Act") do notSubsidiary Guarantors and assuming due authorization, execution and on delivery by the Closing Date the Exchange Act Reports Trustee, will not, include any untrue statement of be a material fact or omit to state any material fact necessary to make the statements therein, in the light valid and binding agreement of the circumstances under which they were madeCompany and the Subsidiary Guarantors, not misleading. Such documentsenforceable in accordance with its terms, when they were filed with the Commissionexcept as enforcement thereof may be limited by bankruptcy, conformed insolvency or other similar laws affecting creditors' rights generally and conforms in all material respects to the requirements description thereof in the Offering Memorandum; no qualification of the Exchange Indenture under the 1939 Act is required in connection with the offer and the rules and regulations sale of the Commission thereunderSenior Subordinated Notes contemplated hereby or in connection with the Exempt Resales.
(bd) The Senior Subordinated Notes have been duly authorized by the Company and, when executed by the Company and each authenticated by the Trustee in accordance with the Indenture and delivered 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 binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Senior Subordinated Notes in the Offering Memorandum will conform in all material respects to the Senior Subordinated Notes.
(e) The Subsidiary Guarantees to be endorsed on the Senior Subordinated Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Senior Subordinated Notes are issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(f) The Exchange Notes have been duly organized authorized by the Company and, when executed by the Company and authenticated by the Trustee and delivered in accordance with the Registered Exchange Offer and the Indenture, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Exchange Notes in the Offering Memorandum will conform in all material respects to the Exchange Notes.
(g) The Subsidiary Guarantees to be endorsed on the Exchange Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Exchange Notes are issued and authenticated in accordance with the terms of the Registered Exchange Offer and the Indenture, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(h) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of any preemptive or similar rights; the authorized capital stock of the Company conforms to the description thereof in the Offering Memorandum.
(i) The Company is a corporation duly organized, validly existing and in good standing under the laws of their respective jurisdiction of organizationDelaware with full corporate power and authority to own, are lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to do conduct its business and are is in good standing in each jurisdiction in which their respective ownership or lease place where the nature of property its properties or the conduct of their respective businesses its business requires such registration or qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engaged, except where the failure so to so register or qualify would does not be reasonably expected to have a material adverse effect on the consolidated condition (financial positionor other), stockholders' equitybusiness, prospects, properties, net worth or results of operations, business or prospects operations of the Company and its subsidiaries (the "Subsidiaries") taken as a whole (a "Material Adverse Effect"); and none of the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant S▇▇▇▇▇▇▇ry", as such term is defined in the Act.
(cj) On The Subsidiary Guarantors are the date of issuance only subsidiaries of the Exchange NotesCompany (except for Aviation Sales Company FSC, Ltd. and Aviation Sales SPS I, Inc. which have no material operations or assets). Each Subsidiary is a corporation duly organized, validly existing and in good standing in the Indenture will conform jurisdiction of its incorporation, with full corporate power and authority to the requirements of the Trust Indenture Act of 1939own, lease and operate its properties and to conduct its business as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the Indenturenature of its properties or the conduct of its business requires such registration or qualification, except where the Guarantees failure so to register or qualify or be in good standing does not have a Material Adverse Effect. All the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and such Notes will constitute valid validly issued, are fully paid and legally binding obligations nonassessable, and are wholly owned by the Company directly or indirectly through one of the other Subsidiaries, free and clear of any lien, adverse claim, security interest (except for security interests in favor of Citicorp USA, Inc. as agent for the Company's various lenders), equity or other encumbrance, except as described in the Offering Memorandum.
(k) There are no legal or governmental proceedings pending or, to the knowledge of the Company and each of the or any Subsidiary GuarantorsGuarantor, enforceable in accordance with their termsthreatened, and the First Supplemental Indenture will constitute valid and legally binding obligations of against the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors of the Operative Documents and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby (the "Transactions") will not (i) conflict with or result in a breach or violation of any of the terms Subsidiaries or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiaries or any of their respective properties is subject, that are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or to materially affect the issuance of the Senior Subordinated Notes or the Subsidiary Guarantors Guarantees or the consummation of the transactions contemplated by this Agreement. There are no material agreements, contracts, indentures, leases or other instruments that are not described in the Offering Memorandum.
(l) Neither the Company nor any of the Subsidiaries is a party (i) in violation of its certificate or by which articles of incorporation or by-laws or other organizational documents, or of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of the Subsidiary Guarantors is bound Subsidiaries or to which of any of the properties or assets of the Company or any of the Subsidiary Guarantors is subject, except for such conflicts, breaches, violations or defaults that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (ii) result in any violation of the provisions of the charter or by-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors Subsidiaries, except where any such violation or violations in the aggregate would not have a Material Adverse Effect or (ii) in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of their respective properties indebtedness or assetsin any material agreement, (iii) result in the imposition indenture, lease or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors Subsidiaries is a party or by which the Company any of them or any of their respective properties may be bound, except where such default or defaults in the aggregate would not have a Material Adverse Effect.
(m) None of the issuance, offer, sale or delivery of the Senior Subordinated Notes or the Subsidiary Guarantees, the execution, delivery or performance of this Agreement or the Indenture or the Registration Rights Agreement by the Company and the Subsidiary Guarantors or their respective properties the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby or assets is bound thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (iv) result except such as may be required in connection with the suspensionregistration under the Act of the Senior Subordinated Notes in accordance with the Registration Rights Agreement, termination qualification of the Indenture under the 1939 Act and compliance with the securities or revocation Blue Sky laws of any Authorization (as defined below) various jurisdictions), or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or as do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term is defined in the Indenture) and as otherwise set forth in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(i) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in conflicts or will conflict with or constitutes or will constitute a breach of, or a default and no event has occurred whichunder, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material respect, any material agreement, indenture, mortgage, deed of trust, loan agreement lease or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened.
(k) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledgeSubsidiaries is a party or by which any of them or any of their respective properties may be bound, except for or violates or will violate in any such spillmaterial respect any statute, dischargelaw, leakregulation or filing or judgment, emissioninjunction, injection, escape, dumping order or release which would not reasonably be expected decree applicable to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company Subsidiaries or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except as set forth their respective properties, or will result in the Offering Memorandumcreation or imposition of any lien, there are no legal charge or governmental proceedings pending to which the Company or any of the Subsidiary Guarantors is a party or of which encumbrance upon any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely Subsidiaries pursuant to the Company terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the Subsidiary Guarantors, would, individually property or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best assets of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersany of them is subject.
(n) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Clark, Schaefer, ▇▇▇▇▇▇▇ & Co., who have certified or shall certify the financial statements included as part of the Offering Memorandum (including or any amendment or supplement thereto), each are independent public accountants under Rule 101 of the AICPA'a Code of Professional Conduct, and its interpretation and rulings.
(o) The consolidated historical financial statements, together with related notes schedules and supporting schedules) notes, included or incorporated by reference in the Offering Memorandum (and any amendment or supplement thereto), present fairly the consolidated financial conditionposition, the results of operations, cash flows operations and changes in the financial position of the Company and its subsidiaries entities covered thereby on the basis stated therein in the Offering Memorandum at the respective dates or indicated and the results of their operations and their cash flows for the respective periods to which they apply; such statements and related schedules and notes have been prepared indicated, in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, such periods. The pro forma financial statements included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) have been prepared on a basis consistent with such historical financial statements, except for the pro forma adjustments specified therein, and give effect to assumptions made on a reasonable basis and present fairly the historical and proposed transactions contemplated by this Agreement and the Offering Memorandum (and any amendment or supplement thereto). The other financial and statistical data included in the Offering Memorandum, historical and pro forma, are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companyentities covered thereby.
(op) Neither The execution and delivery of, and the performance by the Company and the Subsidiary Guarantors of their obligations under, this Agreement and the Registration Rights Agreement have been duly and validly authorized by the Company and the Subsidiary Guarantors, respectively, and this Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors and constitutes, and the Registration Rights Agreement when executed by the Company and the Subsidiary Guarantors will constitute, the valid and legally binding agreements of the Company and the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with their terms, except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy, and the description of the Registration Rights Agreement in the in the Offering Memorandum conforms in all materials respects to the Registration Rights Agreement.
(q) Except as disclosed in the Offering Memorandum (or any amendment or supplement thereto), subsequent to the date as of which such information is given in the Offering Memorandum (or any amendment or supplement thereto), neither the Company nor any of the Subsidiary Guarantors Subsidiaries has sustainedincurred any liability or obligation, since the date of the latest financial statements included direct or incorporated by reference contingent, or entered into any transaction, not in the Offering Memorandumordinary course of business, any that is material loss or interference with its business from fireto the Company and the Subsidiaries taken as a whole, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, and there has not been any material change in the capital stock stock, or material increase in the short-term or long-term debt debt, of the Company or any of the Subsidiary Guarantors Subsidiaries or any material adverse change, or any development involving or which could reasonably be expected to involve a prospective material adverse change, in the condition (financial or affecting the general affairsother), managementbusiness, consolidated financial positionproperties, stockholders' equity, net worth or results of operations, business or prospects operations of the Company and the Subsidiary Guarantors Subsidiaries taken as a whole.
(r) Each of the Company and the Subsidiaries has good and marketable title to all property (real and personal) described in the Offering Memorandum as being owned by it, free and clear of all liens, claims, security interests (except for security interests in favor of Citicorp USA, Inc. as agent for the Company's various lenders), or other than encumbrances except such as set forth or contemplated are described in the Offering Memorandum.
(p) The Company is subject to , and all the reporting requirements of either Section 13 or Section 15(d) property described in the Offering Memorandum as being held under lease by each of the ExcCompany and the Subsidiaries is
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors, jointly and severally, represent and warrant to, and agree with, to the Initial Purchasers that:
(a) As of their respective dates, the Preliminary The Offering Memorandum did not and with respect to the Senior Subordinated Notes has been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Offering Memorandum does notor any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act has been issued and on no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or the Subsidiary Guarantors, is overtly contemplated.
(b) The Offering Memorandum as of its date and as of the Closing Date the Offering Memorandum Date, did not or will not, include any not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. The preceding sentence , except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum or made in reliance upon and in conformity with information relating to the Offering Memorandum based upon written information Initial Purchasers furnished to the Company in writing by Lehman Brothers Inc. specifically or on behalf of the Initial Purchasers expressly for use therein, it being understoo▇ ▇▇▇ agreed that the only such information is that described as such in Section 8(e) hereof. Except as disclosed in the Offering Memorandum, on the date of this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed by the Company with the Commission or sent to shareholders pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") do not, and on the Closing Date the Exchange Act Reports will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Company and each of the Subsidiary Guarantors have been duly organized and are validly existing and in good standing under the laws of their respective jurisdiction of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engaged, except where the failure to so qualify would not be reasonably expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); and none of the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant S▇▇▇▇▇▇▇ry", as such term is defined in the Act.
(c) On the date of issuance of the Exchange Notes, the Indenture will conform to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly validly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Dateand, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Offering Memorandum, the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with upon its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and binding agreement of the Operative Documents Company and the Credit Documents Subsidiary Guarantors, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and subject to the applicability of general principles of equity and conforms in all material respects to the description thereof in the Offering Memorandum; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Senior Subordinated Notes contemplated hereby or in connection with the Exempt Resales.
(d) The Senior Subordinated Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered 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 binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Senior Subordinated Notes in the Offering Memorandum will conform in all material respects to the Senior Subordinated Notes.
(e) The Subsidiary Guarantees to be endorsed on the Senior Subordinated Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Senior Subordinated Notes are issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(f) The Exchange Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee and delivered in accordance with the Registered Exchange Offer and the Indenture, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Exchange Notes in the Offering Memorandum will conform in all material respects to the Exchange Notes.
(g) The Subsidiary Guarantees to be endorsed on the Exchange Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Exchange Notes are issued and authenticated in accordance with the terms of the Registered Exchange Offer and the Indenture, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(h) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the authorized capital stock of the Company conforms to the description thereof in the Offering Memorandum.
(i) The Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a material adverse effect on the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse ---------------- Effect"). ------
(j) All the Company's subsidiaries (as defined belowin the Act) are referred to herein individually as a "Subsidiary" and collectively as the ---------- "Subsidiaries." Each Subsidiary is a corporation duly organized, validly ------------- existing and in good standing in the jurisdiction of its incorporation (except Carl's Mid South Rent-All Center Incorporated is not in good standing in its jurisdiction of incorporation), with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the issuance Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or be in good standing does not have a Material Adverse Effect. All the outstanding shares of capital stock of each of the NotesSubsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are wholly owned by the Exchange NotesCompany directly or indirectly through one of the other Subsidiaries, free and clear of any lien, adverse claim, security interest, equity or other encumbrance, except pursuant to and otherwise permitted by the Guarantees and Credit Facility as described in the Exchange Guarantees, Offering Memorandum.
(k) Schedule III hereto lists the compliance by only jurisdictions or places where the nature of the properties or the conduct of the businesses of the Company and the Subsidiary Guarantors with all requires the provisions hereof and thereof Company and the consummation Subsidiary Guarantors to be duly registered, qualified and in good standing, except where the failure to so register, qualify or be in good standing would not have a Material Adverse Effect.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the transactions contemplated hereby and thereby (Company or the "Transactions") will not (i) conflict with Subsidiary Guarantors, overtly threatened, against the Company or result in a breach or violation of any of the terms Subsidiaries or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound Subsidiaries or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors their respective properties, is subject, except for such conflicts, breaches, violations or defaults that, individually or that are not disclosed in the aggregate, would not Offering Memorandum and which are reasonably be expected likely to have cause a Material Adverse Effect, (ii) result in any violation Effect or to materially affect the issuance of the provisions Senior Subordinated Notes or the consummation of the charter transactions contemplated by this Agreement. There are no material agreements, contracts, indentures or by-laws leases that should be properly described or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result disclosed in the imposition or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result in the suspension, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or as do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term is defined in the Indenture) and as otherwise set forth summary fashion in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as Memorandum that are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(i) so described or disclosed. Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effectemployees, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is overtly threatened.
(km) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither Neither the Company nor any of the Subsidiary Guarantors has received notice Subsidiaries is (i) in violation of infringement its certificate or articles of incorporation or conflictby-laws or other organizational documents, with asserted rights or of others with respect any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of the Subsidiaries or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries except where any such intellectual property thatviolation or violations in the aggregate would not have a Material Adverse Effect or (ii) in default in any respect in the perfor ▇▇▇▇▇ of any obligation, individually agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the aggregateCompany or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, if except as may be disclosed in the subject of an unfavorable decision, ruling Offering Memorandum or finding, where any such default or defaults in the aggregate would not have a Material Adverse Effect.
(ln) There has been no violation by the Company or any None of the Subsidiary Guarantors issuance, offer, sale or delivery of any applicable lawthe Senior Subordinated Notes, ordinancethe execution, rule, regulation, order, judgment, decree delivery or permit relating to the protection performance of natural resources, human health this Agreement or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company Indenture or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated Registration Rights Agreement by the Company or the Subsidiary Guarantors or the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby or thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required in violation connection with the registration under the Act of any Environmental Law the Senior Subordinated Notes in accordance with the Registration Rights Agreement, qualification of the Indenture under the 1939 Act and compliance with the securities or which would require remedial action under any Environmental Law Blue Sky laws of various jurisdictions), or which would otherwise result in liability under Environmental Lawconflicts or will conflict with or constitutes or will constitute a breach of, except for any violationor a default under, remedial action the certificate or liability which would not reasonably be expected to havearticles of incorporation or bylaws, individually or in the aggregate with all such violationsother organizational documents, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or (ii) conflicts or will conflict with respect to which the Company or constitutes or will constitute a breach of, or a default under, in any of the Subsidiary Guarantors has knowledgematerial respect, except for any such spillmaterial agreement, dischargeindenture, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine lease or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending instrument to which the Company or any of the Subsidiary Guarantors is a party or by which any of which them or any of their respective properties may be bound, or violates or will violate in any material respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of the Subsidiary Guarantors or any of their respective properties, or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely pursuant to the Company terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the Subsidiary Guarantorsproperty or assets of any of them is subject.
(o) The accountants, wouldPricewaterhouseCoopers LLP, individually Price Waterhouse LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ & Co. P.C., ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Coopers & ▇▇▇▇▇▇▇ L.L.P., KPMG Peat Marwick L.L.P and Wolf & Company, P.C., who have certified or in shall certify the aggregatefinancial statements included as part of the Offering Memorandum (or any amendment or supplement thereto), reasonably be expected to have a Material Adverse Effect; andare, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersindependent public accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its interpretation and rulings.
(np) The financial statements (including historical and pro forma), together with related schedules and notes forming part of the related notes Offering Memorandum (and supporting schedules) included any amendment or incorporated by reference supplement thereto), present fairly in all material respects the consolidated financial position, results of operations and changes in stockholders' equity and cash flows of the Company and the Subsidiaries on the basis stated in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; the supporting schedules, if any, assumptions used in preparing the pro forma financial information and related notes and schedules included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated thereinare reasonable; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, is accurately presented and, to the extent such information and data is derived from the financial books and records of the Company, is prepared on a basis consistent with such financial statements and the books and records of the Company.
(oq) Neither The Company has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the Registration Rights Agreement; the execution and delivery of, and the performance by the Company nor any of its obligations under, this Agreement and the Registration Rights Agreement have been duly and validly authorized by the Company, and this Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company and constitute the valid and legally binding agreements of the Company, enforceable against the Company in accordance with their terms, except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy.
(r) Each of the Subsidiary Guarantors has sustainedall requisite power and authority to execute, since deliver and perform its obligations under this Agreement and the date Registration Rights Agreement; the execution and delivery of, and the performance by each Subsidiary Guarantor of its obligations under, this Agreement and the latest financial statements included or incorporated Registration Rights Agreement have been duly and validly authorized by reference each Subsidiary Guarantor, and this Agreement and the Registration Rights Agreement have been duly executed and delivered by each Subsidiary Guarantor and constitute the valid and legally binding agreements of each Subsidiary Guarantor, enforceable against each Subsidiary Guarantor in accordance with their terms, except as the Offering Memorandumenforcement hereof and thereof may be limited by bankruptcy, any material loss or interference with its business from fire, explosion, flood insolvency or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any material adverse change, or any development involving a prospective material adverse change, in or similar laws affecting the general affairs, management, consolidated financial position, stockholdersenforcement of creditors' equity, results of operations, business or prospects of the Company rights generally and the Subsidiary Guarantors taken as a whole, other than as set forth or contemplated in the Offering Memorandum.
(p) The Company is subject to the reporting requirements applicability of either Section 13 general principles of equity, and except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or Section 15(d) of the Excstate
Appears in 1 contract
Sources: Purchase Agreement (National Equipment Services Inc)
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors, jointly and severally, represent and warrant to, and agree with, to the Initial Purchasers that:
(a) As The Preliminary Offering Memorandum and Offering Memorandum with respect to the Senior Subordinated Notes have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of their respective dates, the Preliminary Offering Memorandum did not or the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or the Subsidiary Guarantors, is overtly contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum does not, as of their respective dates and on the Closing Date the Offering Memorandum as of the Closing Date, did not or will not, include any not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. The preceding sentence , except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum or the and Offering Memorandum based made in reliance upon written and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by Lehman Brothers Inc. specifically or on behalf of the Initial Purchasers expressly for use therein, it being understoo▇ ▇▇▇ agreed that the only such information is that described as such in Section 8(e.
(c) hereof. Except as disclosed in the Offering Memorandum, on the date of this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission The Indenture has been duly and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed validly authorized by the Company and the Subsidiary Guarantors and, upon its execution, delivery and performance by the Company and the Subsidiary Guarantors and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and binding agreement of the Company and the Subsidiary Guarantors, enforceable in accordance with the Commission its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or sent to shareholders pursuant other similar laws affecting creditors' rights generally and subject to the Securities Exchange Act applicability of 1934 (the "Exchange Act") do not, general principles of equity and on the Closing Date the Exchange Act Reports will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed conforms in all material respects to the requirements description thereof in the Offering Memorandum; no qualification of the Exchange Indenture under the 1939 Act is required in connection with the offer and the rules and regulations sale of the Commission thereunderSenior Subordinated Notes contemplated hereby or in connection with the Exempt Resales.
(bd) The Senior Subordinated Notes have been duly authorized by the Company and, when executed by the Company and each authenticated by the Trustee in accordance with the Indenture and delivered 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 binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Senior Subordinated Notes in the Offering Memorandum will conform in all material respects to the Senior Subordinated Notes.
(e) The Subsidiary Guarantees to be endorsed on the Senior Subordinated Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Senior Subordinated Notes are issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(f) The Exchange Notes have been duly organized authorized by the Company and, when executed by the Company and authenticated by the Trustee and delivered in accordance with the Registered Exchange Offer and the Indenture, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of the Exchange Notes in the Offering Memorandum will conform in all material respects to the Exchange Notes.
(g) The Subsidiary Guarantees to be endorsed on the Exchange Notes have been duly authorized by the Subsidiary Guarantors and, when executed by the Subsidiary Guarantors and when the Exchange Notes are issued and authenticated in accordance with the terms of the Registered Exchange Offer and the Indenture, such Subsidiary Guarantees will have been validly issued and delivered and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and the description of such Subsidiary Guarantees in the Offering Memorandum will conform in all material respects to such Subsidiary Guarantees.
(h) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; the authorized capital stock of the Company conforms to the description thereof in the Offering Memorandum.
(i) The Company is a corporation duly organized, validly existing and in good standing under the laws of their respective jurisdiction the state of organizationDelaware with full corporate power and authority to own, are lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to do conduct its business and are is in good standing in each jurisdiction in which their respective ownership or lease place where the nature of property its properties or the conduct of their respective businesses its business requires such registration or qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engaged, except where the failure so to so register or qualify would does not be reasonably expected to have a material adverse effect on the consolidated condition (financial positionor other), stockholders' equitybusiness, prospects, properties, net worth or results of operations, business or prospects operations of the Company and its subsidiaries the Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse Effect"); and none of .
(j) All the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant S▇▇▇▇▇▇▇ry", Company's subsidiaries (as such term is defined in the Act.
(c) On the date of issuance of the Exchange Notes, the Indenture will conform are referred to the requirements of the Trust Indenture Act of 1939, herein individually as amended (a "Subsidiary" and collectively as the "Trust Indenture Act")Subsidiaries." Each Subsidiary is a corporation duly organized, validly existing and in good standing in the rules jurisdiction of its incorporation, with full corporate power and regulations of the Commission applicable authority to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company own, lease and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company operate its properties and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained conduct its business as described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations nature of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement properties or the Shelf Registration Statement effective and (iii) for conduct of its business requires such consents, approvals, authorizations, orders, filings registration or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors of the Operative Documents and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby (the "Transactions") will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors is subjectqualification, except for such conflicts, breaches, violations where the failure so to register or defaults that, individually qualify or be in the aggregate, would good standing does not reasonably be expected to have a Material Adverse Effect, (ii) result in any violation . All the outstanding shares of capital stock of each of the provisions of the charter or by-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result in the imposition or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result in the suspension, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has Subsidiaries have been duly authorizedauthorized and validly issued, executed are fully paid and delivered nonassessable, and are wholly owned by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each directly or indirectly through one of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them andother Subsidiaries, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liensany lien, encumbrances adverse claim, security interest, equity or other encumbrance, except pursuant to and defects or as do not materially interfere with the use made and proposed to be made of such property otherwise permitted by the Company and the Subsidiary Guarantors (other than Permitted Liens (Credit Facility as such term is defined in the Indenture) and as otherwise set forth in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(i) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened.
(k) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiary Guarantors is a party or of which any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely to the Company or any of the Subsidiary Guarantors, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company.
(o) Neither the Company nor any of the Subsidiary Guarantors has sustained, since the date of the latest financial statements included or incorporated by reference in the Offering Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and the Subsidiary Guarantors taken as a whole, other than as set forth or contemplated described in the Offering Memorandum.
(p) The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exc
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary GuarantorsGuarantors acknowledge that each of the Initial Purchasers and, jointly for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 9 hereof, counsel to the Company and severallythe Subsidiary Guarantors and counsel to the Initial Purchasers, represent will rely upon the accuracy and warrant totruth of the following representations and hereby consent to such reliance. In addition to the representations and warranties listed in this Section 5, each certificate signed by any officer of the Company or any of the Subsidiary Guarantors and agree withdelivered to the Initial Purchasers or counsel for the Initial Purchasers pursuant to this Agreement shall be deemed to be a representation and warranty by the Company or such Subsidiary Guarantor, as the case may be, to the Initial Purchasers as to the matters covered thereby. The Company represents and warrants to each of the Initial Purchasers that:
(a) As The Preliminary Offering Memorandum and the Offering Memorandum have been prepared for use in connection with the Exempt Resales. The Preliminary Offering Memorandum and the Offering Memorandum do not, and any supplement or amendment to them will not, as of their respective dates, the Preliminary Offering Memorandum did not and the Offering Memorandum does not, and on the Closing Date the Offering Memorandum will not, include contain 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 , except that the representations and warranties contained in this paragraph shall not apply to statements in or omissions from the Preliminary Offering Memorandum or and the Offering Memorandum based (or any supplement or amendment thereto) made in reliance upon written and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by Lehman Brothers Inc. specifically the Initial Purchasers expressly for use therein, it being understoo▇ ▇▇▇ agreed that . No stop order preventing the only such information is that described as such in Section 8(e) hereof. Except as disclosed in use of the Preliminary Offering Memorandum or the Offering Memorandum, on or any amendment or supplement thereto, or any order asserting that any of the date of transactions contemplated by this Agreement, the Company's Annual Report on Form 10-K/A most recently filed with the Commission and all reports since January 1, 2004 (collectively, the "Exchange Act Reports") which have been filed by the Company with the Commission or sent to shareholders pursuant Agreement are subject to the Securities Exchange Act of 1934 (the "Exchange Act") do not, and on the Closing Date the Exchange Act Reports will not, include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the registration requirements of the Exchange Act and the rules and regulations of the Commission thereunderSecurities Act, has been issued.
(b) The When the Securities are issued and delivered pursuant to this Agreement, none of the Securities will be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(c) Each of the Company and each of the Subsidiary Guarantors have Guarantor has been duly organized incorporated or formed and are is validly existing and as a corporation or limited liability company, as the case may be, in good standing under the laws of their respective the jurisdiction of organizationits incorporation or formation and has the power and authority to own, are lease and operate its properties and to conduct its business as described in the Offering Memorandum. Each of the Company and each Subsidiary Guarantor is duly qualified as a foreign corporation or limited liability company, as the case may be, to do transact business and are is in good standing in each jurisdiction in which their respective such qualification is required, whether by reason of the ownership or lease leasing of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own, lease or hold their respective properties and to conduct the businesses in which they respectively are engagedbusiness, except for such jurisdictions where the failure to so qualify would not be reasonably expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); and none of the Subsidiary Guarantors, other than Beverly Health and Rehabilitation Services, Inc., is a "Significant S▇▇▇▇▇▇▇ry", as such term is defined in the Act.
(c) On the date of issuance of the Exchange Notes, the Indenture will conform to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Offering Memorandum, the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors of the Operative Documents and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby (the "Transactions") will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors is subject, except for such conflicts, breaches, violations or defaults thatbe in good standing would not, individually or in the aggregate, would not result in a material adverse change, or any development that could reasonably be expected to have a Material Adverse Effect, (ii) result in any violation of the provisions of the charter or by-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any ordera material adverse change, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result in the imposition condition, financial or creation of (otherwise, or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement earnings, business, operations or instrument to which the Company prospects, whether or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result not arising from transactions in the suspensionordinary course of business, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or considered as do not materially interfere with the use made and proposed to be made of one entity (any such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term change is defined in the Indenture) and as otherwise set forth in the Offering Memorandumcalled a "Material Adverse Change"); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(id) Neither All of the outstanding shares of capital stock of the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent documenthave been duly authorized, (ii) is in default validly issued, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is are fully paid and nonassessable and were not issued in violation of any lawpreemptive or similar rights. At December 31, ordinance1997, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary after giving effect to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None issuance and sale of the Company or any Units pursuant hereto and the application of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to net proceeds from the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened.
(k) The Company and each sale of the Subsidiary Guarantors own or possess adequate rights to use all material patentsUnits, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of had the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except pro forma consolidated capitalization as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which Memorandum under the Company or any of the Subsidiary Guarantors is a party or of which any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely to the Company or any of the Subsidiary Guarantors, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by otherscaption "Capitalization."
(n) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company.
(o) Neither the Company nor any of the Subsidiary Guarantors has sustained, since the date of the latest financial statements included or incorporated by reference in the Offering Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (a "Material Loss"), other than as set forth or contemplated in the Offering Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and the Subsidiary Guarantors taken as a whole, other than as set forth or contemplated in the Offering Memorandum.
(pe) The Company is subject the sole member of each Subsidiary Guarantor, with the exception of VIC-RMTS-DC, LLC, and the Company's interest in each Subsidiary Guarantor is free and clear of any security interest, claim, lien, limitation on voting rights or encumbrance. The Company has no subsidiaries other than the Subsidiary Guarantors. As used in this Agreement, "subsidiary" or "subsidiaries" means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the reporting requirements occurrence of either Section 13 any contingency) to vote in the election of directors, managers or Section 15(d) trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the Excother subsidiaries of that Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such Person or a subsidiary of such Person or (b) the only general partners of which are such Person or of one or more subsidiaries or such Person (or any combination thereof).
Appears in 1 contract
Sources: Purchase Agreement (Onepoint Communications Corp /De)
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and the Subsidiary Guarantors, Guarantors jointly and severally, severally represent and warrant to, and agree with, each of the Initial Purchasers Underwriters that:
(a) As No order preventing or suspending the use of their respective datesany Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the Preliminary Offering Memorandum time of filing thereof, complied in all material respects with the Securities Act and did not and the Offering Memorandum does not, and on the Closing Date the Offering Memorandum will not, include contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Subsidiary Guarantors make no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company or the Subsidiary Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(b) The Time of Sale Information, at the Time of Sale did not, 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. The preceding sentence does not apply ; provided that the Company and the Subsidiary Guarantors make no representation and warranty with respect to any statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum based made in reliance upon written and in conformity with information relating to any Underwriter furnished to the Company or the Subsidiary Guarantors in writing by Lehman Brothers Inc. specifically such Underwriter through the Representatives expressly for use thereinin such Time of Sale Information, it being understoo▇ ▇▇▇ understood and agreed that the only such information is that furnished by any Underwriter consists of the information described as such in Section 8(e7(b) hereof. Except as disclosed No statement of material fact included in the Offering MemorandumProspectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c) The Company and the Subsidiary Guarantors (including their respective agents and representatives, on other than the date Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of this Agreementan offer to buy the Securities (each such communication by the Company, the Company's Annual Report Subsidiary Guarantors, their respective agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) any Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Form 10-K/Annex A most recently filed hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Commission and all reports since January 1Securities Act, 2004 has been or will be (collectively, within the "Exchange Act Reports"time period specified in Rule 433) which have been filed by the Company in accordance with the Commission or sent to shareholders pursuant Securities Act (to the Securities Exchange Act extent required thereby) and, when taken together with the Preliminary Prospectus filed prior to the first use of 1934 (the "Exchange Act") do such Issuer Free Writing Prospectus, did not, and on at the Closing Date the Exchange Act Reports will not, include contain any untrue statement of a material fact or omit to state any 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 Company and the Subsidiary Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company or the Subsidiary Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. Based on communications from the Commission, 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 Securities Act against the Company or related to the Offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Subsidiary Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company or the Subsidiary Guarantors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(e) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, 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 Securities Act, the Exchange Act and the Rules and Regulations, and none of such documents contained any untrue statement of a material fact or omitted 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. Such documents; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when they were such documents become effective or are filed with the Commission, conformed as the case may be, will conform in all material respects to the requirements of the Securities Act, the Exchange Act or the Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements of the Company, including the related notes thereto and the supporting schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus (the “Company Financial Statements”), present fairly the financial position as of the dates indicated and the cash flows and results of operations for the periods specified of the Company and its consolidated subsidiaries; except as otherwise stated in the Registration Statement, the Time of Sale Information and the Prospectus, the Company Financial Statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved; and the supporting schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in accordance with GAAP the information required to be stated therein. The Company Financial Statements have been prepared in accordance with the applicable requirements of the Securities Act, the Exchange Act and the Rules and Regulations. The pro forma financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission’s rules and regulations guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as otherwise included therein, no other historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Time of Sale Information or the Prospectus. The other financial and statistical information and data of the Commission thereunderCompany included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the Company’s financial statements that are included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus and the books and records of the respective entities presented therein.
(bg) To the knowledge of the Company, the financial statements relating to Rockwood, including the related notes thereto and the supporting schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus (the “Rockwood Financial Statements”), present fairly the financial position as of the dates indicated and the cash flows and results of operations for the periods specified of Rockwood and its consolidated subsidiaries; except as otherwise stated in the Registration Statement, the Time of Sale Information and the Prospectus, the Rockwood Financial Statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved; and the supporting schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in accordance with GAAP the information required to be stated therein.
(h) The interactive data of the Company in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(i) PricewaterhouseCoopers LLP, whose reports appear or are incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus and who have certified the financial statements and supporting schedules and information of the Company and each its subsidiaries that are included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, is an independent registered public accounting firm with respect to the Company as required by the Public Company Accounting Oversight Board (United States)(the “PCAOB”), the Securities Act, the Exchange Act and the Rules and Regulations.
(j) To the knowledge of the Subsidiary Guarantors Company, Deloitte & Touche LLP, whose reports appear or are incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus and who have been duly organized certified the financial statements and supporting schedules and information of Rockwood and its subsidiaries that are validly existing included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, is an independent registered public accounting firm with respect to Rockwood as required by the PCAOB, the Securities Act, the Exchange Act and the Rules and Regulations.
(k) Subsequent to the respective dates as of which information is given in good standing under the laws Registration Statement, the Time of their respective jurisdiction Sale Information and the Prospectus, except as disclosed in the Registration Statement, the Time of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property Sale Information or the conduct Prospectus (but excluding, for purposes of their respective businesses requires such qualificationthe condition set forth in Section 6(b), and have all power and authority necessary any amendment or supplement to ownthe Time of Sale Information or the Prospectus), lease (i) the Company has not declared, paid or hold their respective properties and to conduct the businesses made any dividends or other distributions of any kind on or in which they respectively are engagedrespect of its capital stock, except where the failure to so qualify would not be reasonably expected to have a (ii) there has been no material adverse effect on change or any development involving a prospective material adverse change, whether or not arising from transactions in the consolidated ordinary course of business, in or affecting the business, condition (financial position, stockholders' equityor otherwise), results of operations, business properties or prospects of the Company and each subsidiary of the Company, taken as a whole, (iii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); and none of the Subsidiary Guarantorsor incurred any liability or obligation, other than Beverly Health and Rehabilitation Servicesdirect or contingent, Inc., that is a "Significant S▇▇▇▇▇▇▇ry", as such term is defined in the Act.
(c) On the date of issuance of the Exchange Notes, the Indenture will conform material to the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(d) The Indenture has been duly authorized by the Company and each of the Subsidiary Guarantors; the First Supplemental Indenture has been duly authorized by the Company and the guarantors named therein; the Notes have been duly authorized by the Company; the Guarantees have been duly authorized by the Subsidiary Guarantors and when the Notes are delivered and paid for pursuant to this Agreement on the Closing Dateits subsidiaries taken as a whole, the Indenture, the First Supplemental Indenture and the Guarantees will have been duly executed and delivered, such Notes will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Offering Memorandum, the Indenture, the Guarantees and such Notes will constitute valid and legally binding obligations of the Company and each of the Subsidiary Guarantors, enforceable in accordance with their terms, and the First Supplemental Indenture will constitute valid and legally binding obligations of the Company and each of the guarantors named therein, enforceable in accordance with its terms, each subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Except (i) as required by state securities or "blue sky" laws, (ii) the order of the Commission declaring the Exchange Offer Registration Statement or the Shelf Registration Statement effective and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or made, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of the Operative Documents, the issuance and sale of the Notes and the Guarantees or the transactions contemplated by the Operative Documents or the Tender Offer and Consent Solicitation.
(f) The execution, delivery and performance by the Company and the Subsidiary Guarantors of the Operative Documents and the Credit Documents (as defined below), the issuance of the Notes, the Exchange Notes, the Guarantees and the Exchange Guarantees, the compliance by the Company and the Subsidiary Guarantors with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby (the "Transactions") will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors is bound or to which any of the properties or assets of the Company or any of the Subsidiary Guarantors is subject, except for such conflicts, breaches, violations or defaults that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (ii) result in any violation of the provisions of the charter or by-laws or other constituent document of the Company or any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, (iii) result in the imposition or creation of (or the obligation to create or impose) a Lien (other than the Permitted Liens (as such terms are defined in the Indenture)) under any agreement or instrument to which the Company or any of the Subsidiary Guarantors is a party or by which the Company or any of the Subsidiary Guarantors or their respective properties or assets is bound or (iv) result in the suspension, termination or revocation of any Authorization (as defined below) of the Company or any of the Subsidiary Guarantors or any other impairment of the rights of the holder of any such Authorization.
(g) This Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and the Registration Rights Agreement has been duly authorized by the Company and the Subsidiary Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and the Subsidiary Guarantors.
(h) The Company and each of the Subsidiary Guarantors have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property owned by them and, in each case, material to the business of the Company and the Subsidiary Guarantors, in each case free and clear of all liens, encumbrances and defects or as do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiary Guarantors (other than Permitted Liens (as such term is defined in the Indenture) and as otherwise set forth in the Offering Memorandum); and all assets held under lease by the Company and the Subsidiary Guarantors are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiary Guarantors.
(i) Neither the Company nor any of the Subsidiary Guarantors (i) is in violation of its charter or by-laws or other constituent document, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") necessary to the ownership of its properties or assets or to the conduct of its business that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(j) None of the Company or any of the Subsidiary Guarantors is involved in any strike, job action or labor dispute with any group of employees that would reasonably be expected to have a Material Adverse Effect, and, to the Company's and the Subsidiary Guarantors' knowledge, no such action or dispute is threatened.
(k) The Company and each of the Subsidiary Guarantors own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, inventions, know-how (including trade ▇▇▇rets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and licenses necessary for the conduct of their respective businesses, except where the failure to own or possess any such rights would not reasonably be expected to have a Material Adverse Effect and the Company and each of the Subsidiary Guarantors have no reason to believe that the conduct of their respective businesses will conflict with, and neither the Company nor any of the Subsidiary Guarantors has received notice of infringement of or conflict, with asserted rights of others with respect to any of such intellectual property that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(l) There has been no violation by the Company or any of the Subsidiary Guarantors of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit relating to the protection of natural resources, human health or the environment ("Environmental Law") or storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes, hazardous substances or any other material that is regulated under, or that could result in the imposition of liability under, any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, petroleum and petroleum products (collectively, "Hazardous Substances"), by the Company or any of the Subsidiary Guarantors (or, to the knowledge of the Company or the Subsidiary Guarantors, any of their predecessors in interest) at, upon or from any of the property now or previously owned, leased or operated by the Company or the Subsidiary Guarantors in violation of any Environmental Law or which would require remedial action under any Environmental Law or which would otherwise result in liability under Environmental Law, except for any violation, remedial action or liability which would not reasonably be expected to have, individually or in the aggregate with all such violations, remedial actions and liabilities, a Material Adverse Effect; there has been no spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environmental surrounding such property of any Hazardous Substances due to or caused by the Company or any of the Subsidiary Guarantors or with respect to which the Company or any of the Subsidiary Guarantors has knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, individually or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumping and releases, a Material Adverse Effect; except as disclosed in the Offering Memorandum, there is no claim by any governmental agency or body against the Company or any of the Subsidiary Guarantors under any Environmental Law that the Company or any Subsidiary Guarantors believes may result in a fine or other monetary sanction of $100,000 or more; and except as disclosed in the Offering Memorandum, no material expenditures by the Company or any of the Subsidiary Guarantors are anticipated in order to maintain compliance with Environmental Law.
(m) Except as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiary Guarantors is a party or of which any property or assets of the Company or any of the Subsidiary Guarantors is subject which, if determined adversely to the Company or any of the Subsidiary Guarantors, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's and the Subsidiary Guarantor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Offering Memorandum present fairly the financial condition, the results of operations, cash flows and changes in the financial position of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; the supporting schedules, if any, included or incorporated by reference in the Preliminary Offering Memorandum or the Offering Memorandum present fairly in accordance with generally accepted accounting principles the information required to be stated therein; and the other financial and statistical information and data set forth in the Preliminary Offering Memorandum and Offering Memorandum (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company.
(o) Neither the Company nor any of the Subsidiary Guarantors has sustained, since the date of the latest financial statements included or incorporated by reference in the Offering Memorandum, sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental any action, order or decree (a "Material Loss")of any court or arbitrator or governmental or regulatory authority, other than except in each case as set forth or contemplated otherwise disclosed in the Offering MemorandumRegistration Statement, the Time of Sale Information and the Prospectus; and, since such date, and (v) there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiary Guarantors or any no material adverse change, change or any development involving a prospective material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting the general affairsOffering, managementthe Registration Statement, consolidated financial position, stockholders' equity, results the Time of operations, business Sale Information or prospects the Prospectus or on the ability of the Company and or the Subsidiary Guarantors to perform their respective obligations under, and consummate the transactions contemplated by, the Transaction Documents (any of the matters specified in clauses (ii), (iii), (iv) or (v), a “Material Adverse Effect”). Since the date of the latest balance sheet of the Company presented, or incorporated by reference, in the Registration Statement, the Time of Sale Information or the Prospectus, neither the Company nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, which are material to the Company and its subsidiaries taken as a whole, other than except for liabilities, obligations and transactions which are disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(l) The Company has an authorized capitalization as set forth or contemplated in the Offering Memorandum.
(p) The Company is subject to Registration Statement, the reporting requirements Time of either Section 13 or Section 15(d) Sale Information and the Prospectus under the heading “Capitalization”. All of the Excissued a
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