Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and each of the Subsidiary Guarantors jointly and severally represent and warrant to and agree with each of the Underwriters that: (a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge of the Company, threatened by the Commission. (b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company and the Subsidiary Guarantors, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) as of its date and the Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. (c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule IV hereto, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus. (d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. (e) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. (f) Each subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent the concept of good standing is applicable in such jurisdiction), except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and except as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (other than transfer restrictions under applicable securities laws and liens permitted by the debt instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus. (g) Each of the Company and the Subsidiary Guarantors has full power and authority to execute and deliver this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) to which it is a party (collectively, the “Transaction Documents”) and to perform its respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly taken. (h) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); the Tenth Supplemental Indenture has been duly authorized by the Company and each Subsidiary Guarantor and, when duly authorized, executed and delivered in accordance with its terms by the Company and the Subsidiary Guarantors, and assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and legally binding agreement of the Company and each of the Subsidiary Guarantors enforceable against the Company and each of the Subsidiary Guarantors, as applicable, subject to the Enforceability Exceptions; the Indenture has been duly qualified by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). (i) The Securities have been duly authorized by the Company and, when executed and delivered by the Company pursuant to the terms of this Agreement, and assuming due authentication thereof by the Trustee, will be duly executed, authenticated, issued and delivered as provided in the Indenture, and when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Subsidiary Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding agreements of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture. (j) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors. (k) Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus. (l) The execution and delivery by the Company and each of the Subsidiary Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the issuance of the Guarantees and the performance by the Company and each of the Subsidiary Guarantors of its respective obligations under, the Transaction Documents, as applicable, will not contravene (i) any provision of applicable law, (ii) their respective charters, bylaws or similar organizational documents, (iii) any agreement or other instrument binding upon the Company, the Subsidiary Guarantors or any of the Company’s or Subsidiary Guarantors’ respective subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or its subsidiaries, except, in the cases of clauses (i), (iii) and (iv) above, as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents, as applicable. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company or the Subsidiary Guarantors of their respective obligations under the Transaction Documents, as applicable, except the registration under the Securities Act of the Securities and Guarantees, any required filings under the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters. (m) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus. (n) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company, any Subsidiary Guarantor or any of their respective subsidiaries is a party or to which any of the properties of the Company, any Subsidiary Guarantor or any of their respective subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. (o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. (p) Neither the Company nor any Subsidiary Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (q) The Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and have fulfilled all material obligations with respect to such Permits, except where the failure to possess such Permits or perform such obligations would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. (r) No labor disturbance by or dispute with employees of the Company or its subsidiaries exists or, to the knowledge of the Company, the Subsidiary Guarantors or their respective subsidiaries, is contemplated or threatened, except as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. (s) The Company, the Subsidiary Guarantors and each
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. [The Company][Each of the Company and each of the Subsidiary Guarantors Guarantors, jointly and severally represent severally,] represents and warrant to warrants to, and agree with each of agrees with, the several Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending At the effectiveness of time the Registration Statement is in effectbecame effective, the Registration Statement complied, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge as of the CompanyClosing Date (as defined hereinafter), threatened by the Commission.
(b) (i) Each documentwill comply, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder, (ii) the 1933 Act Regulations. The Registration Statement, when at the time it became effective, did not contain andnot, as amended or supplementedof the date hereof, if applicabledoes not, and at the Closing Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and. The Prospectus, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers its date and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company and the Subsidiary Guarantors, if applicable, will not, not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by the Underwriters expressly for use in the Registration Statement or Prospectus or to those parts of the Registration Statement which constitute the Statements of Eligibility and Qualification under the 1939 Act (vthe “Forms T-1”) each broadly available road showof , if anyas trustee (the “Trustee”) that are filed as exhibits to the Registration Statement.
(b) The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied or, when considered together so filed, will comply, as the case may be, in all material respects with the Time requirements of Sale the 1934 Act and the rules and regulations thereunder (the “1934 Act Regulations”), and, when read together and with the other information in the Prospectus, does at the time the Registration Statement became effective, as of the date of the Prospectus and on the Closing Date, did not and will not, as of such time or dates, as the case may be, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) as of its date and the Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 Offered Securities have been duly and 433 under the Securities Act. Any free writing prospectus that validly authorized by the Company is required to file pursuant to Rule 433(d) under and, when duly executed by the Securities Act has been, or will be, filed with the Commission Company in accordance with the requirements terms of the Securities Act and the applicable rules and regulations Indenture, assuming due authentication of the Commission thereunder. Each free writing prospectus that Offered Securities by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued and delivered, and will constitute valid and binding obligations of the Company has filedentitled to the benefits of the Indenture, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by enforceable against the Company complies in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The Offered Securities will comply conform in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule IV hereto, and electronic road shows, if any, each furnished to the Representatives before first use, descriptions thereof contained in the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectusProspectus.
(d) [The Company Guarantee by each Subsidiary Guarantor has been duly incorporatedand validly authorized by such Subsidiary Guarantor and when duly endorsed on the Offered Securities by such Subsidiary Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Offered Securities in accordance with the Indenture against payment therefor in accordance with the terms hereof, will constitute valid and binding obligations of such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The Guarantees will conform in all material respects to the description thereof in the Prospectus.]
(e) The Company [and each Subsidiary Guarantor] has been duly incorporated [or formed] and is validly an existing corporation [or other entity] in good standing under the laws of [the State of Delaware] [its state of incorporation or organization], with power and authority (corporate and other organizational) to own its properties and conduct its business as described in the Prospectus; and the Company [and each Subsidiary Guarantor] is duly qualified to do business as a foreign corporation [or other entity] in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the current or future condition (financial or other), business, properties or results of operations of the Company[, the Subsidiary Guarantors] and any [other] subsidiary of the Company, taken as a whole (a “Material Adverse Effect”). The Company [and each of the Subsidiary Guarantors] has all requisite power and authority (corporate and other organizational) to enter into the Operative Documents and to authorize, issue and sell the Offered Securities [and the Guarantees, as the case may be,] as contemplated by this Agreement.
(f) Each subsidiary of the Company [(other than a Subsidiary Guarantor)] has been duly incorporated or formed and is an existing corporation or other entity in good standing under the laws of the jurisdiction of its incorporationincorporation or organization, has the corporate with power and authority (corporate and other organizational) to own or lease its property properties and to conduct its business as described in the Prospectus; and each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and such subsidiary is duly qualified to transact do business and is as a foreign corporation or other entity in good standing in each jurisdiction all other jurisdictions in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect.
(eg) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and all . All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly authorized and issued and are fully paid and non-assessable.
(f) Each . All of the issued and outstanding shares of capital stock of each [Subsidiary Guarantor and of each other] subsidiary of the Company has been duly incorporatedauthorized and validly issued and is fully paid and nonassessable and the shares of capital stock of each [Subsidiary Guarantor and of each other] subsidiary owned by the Company, organized directly or formedthrough subsidiaries, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporationowned free from liens, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power encumbrances and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent the concept of good standing is applicable in such jurisdiction)defects, except to the extent that the failure to be so qualified or be in good standing as (i) would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on Material Adverse Effect, (ii) may exist or arise pursuant to or in connection with the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and except as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (other than transfer restrictions under applicable securities laws and liens permitted by the [debt instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries agreements described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(g) Each of the Company and the Subsidiary Guarantors has full power and authority to execute and deliver this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) to which it is a party ] (collectively, the “Transaction DocumentsDebt Agreements”) and to perform its respective obligations hereunder and thereunder; and all action required to be taken for or (iii) disclosed in the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly takenProspectus.
(h) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); the Tenth Supplemental Indenture has been duly validly authorized by the Company and each Subsidiary Guarantor and, when duly authorized, executed and delivered in accordance with its terms by the Company and the Subsidiary Guarantors, and assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and legally binding agreement of the Company and each of the Subsidiary Guarantors enforceable against the Company and each of the Subsidiary Guarantors, as applicable, subject to the Enforceability Exceptions; the Indenture has been duly qualified by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(i) The Securities have been duly authorized by the Company and upon its execution and delivery and, when executed and delivered by the Company pursuant to the terms of this Agreement, and assuming due authentication thereof authorization, execution and delivery by the Trustee, will be duly executed, authenticated, issued and delivered as provided in constitute the Indenture, and when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Subsidiary Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding agreements of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with their its terms, subject except as such enforceability may be limited by bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The Indenture will conform in all material respects to the Enforceability Exceptionsdescription thereof in the Prospectus.
(i) Except as disclosed in the Prospectus, and will be entitled to there are no contracts, agreements or understandings between the benefits Company [or any of the IndentureSubsidiary Guarantors] and any person that would give rise to a valid claim against the Company[, any Subsidiary Guarantor] or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the sale of the Offered Securities.
(j) Except for the Registration Rights Agreement dated August 16, 2004 between the Company and TTWF LP and except as described in the Prospectus, there are no contracts, agreements or understandings between the Company [or any Subsidiary Guarantor] and any person granting such person the right to require the Company [or such Subsidiary Guarantor] to file a registration statement under the 1933 Act with respect to any securities of the Company [or such Subsidiary Guarantor] owned or to be owned by such person or to require the Company [or such Subsidiary Guarantor] to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company [or such Subsidiary Guarantor] under the 1933 Act that have not been validly waived or satisfied prior to the date hereof.
(k) No consent, approval, authorization, or order of, or filing with, any governmental agency of the United States or body or any court with jurisdiction in the United States is required to be obtained or made by the Company [or any of the Subsidiary Guarantors] for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made or will be obtained and made prior to the date hereof under the 1933 Act (provided, however, a filing with the Commission pursuant to Rule 424(b) may be made after the date hereof so long as such filing is made within the time period specified in the applicable provision of such rule) and such as may be required under state securities or blue sky laws.
(l) The execution, delivery and performance of the Operative Documents by the Company [and the Subsidiary Guarantors], and the consummation of the transactions herein contemplated, will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company[, any Subsidiary Guarantor] or any [other] subsidiary of the Company or any of their respective properties, or (B) any agreement or instrument to which the Company[, any Subsidiary Guarantor] or any [other] subsidiary of the Company is a party or by which any of them is bound or to which any of their respective properties is subject, or (C) any of their respective charters or by-laws or other organizational documents, other than, in the case of clauses (A) or (B) above, such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, have a Material Adverse Effect.
(m) This Agreement has been duly authorized, executed and delivered by the Company [and the Subsidiary Guarantors].
(n) Except as disclosed in the Prospectus, the Company[, each of the Subsidiary Guarantors.
(k) Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(l) The execution and delivery by the Company ] and each of the Subsidiary Guarantors of each [other] subsidiaries of the Transaction Documents Company has (A) good and indefeasible title to which each is a party(in the case of fee interests in real property), (B) valid leasehold interests in (in the issuance case of leasehold interests in real or personal property) and sale (C) valid title to (in the case of the Securities and the issuance of the Guarantees and the performance by the Company and each of the Subsidiary Guarantors all other personal property), all of its respective obligations under, the Transaction Documents, as applicable, will not contravene (i) any provision of applicable law, (ii) their respective charters, bylaws or similar organizational documents, (iii) any agreement or other instrument binding upon the Company, the Subsidiary Guarantors or any of properties and assets reflected in the Company’s or Subsidiary Guarantors’ respective subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or its subsidiaries, except, consolidated financial statements included in the cases Registration Statement and the Prospectus free and clear of clauses (i)all liens, (iii) encumbrances and (iv) abovedefects, except for such failures to have such title to or interests in, and for such liens, encumbrances and defects, as would not, singly individually or in the aggregate, have a Material Adverse Effect.
(o) The Company[, the Subsidiary Guarantors] and each [other] subsidiary of the Company possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except as would not, individually or in the aggregate, have a Material Adverse Effect, and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company[, the Subsidiary Guarantors] or any [such] subsidiary, would individually or in the aggregate, have a Material Adverse Effect.
(p) No labor dispute with the employees of the Company[, the Subsidiary Guarantors] or any [other] subsidiary of the Company exists or, to the knowledge of the Company [or any of the Subsidiary Guarantors], is imminent that would reasonably be expected to have a material adverse effect on Material Adverse Effect.
(q) The Company[, the Company Subsidiary Guarantors] and its subsidiaries, taken as a whole, or on the power or ability [other] subsidiaries of the Company own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, except as would not, individually or in the aggregate, have a Material Adverse Effect, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company[, the Subsidiary Guarantors] or any [such] subsidiary, would individually or in the aggregate have a Material Adverse Effect.
(r) Except as disclosed in the Prospectus, and except for such matters as would not, individually or in the aggregate, have a Material Adverse Effect or be required to be disclosed in the Prospectus by the Commission pursuant to the 1933 Act Regulations, the Company[, the Subsidiary Guarantors] and the [other] subsidiaries of the Company (or, to the knowledge of the Company [or the Subsidiary Guarantors], any other entity for whose acts or omissions the Company is [or the Subsidiary Guarantors to perform are] or may be liable) (1) are conducting and have conducted their respective obligations businesses, operations and facilities in compliance with Environmental Laws (as defined below); (2) possess and maintain in full force and effect any and all permits, licenses or registrations required under the Transaction Documents, as applicable. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required Environmental Law for the performance by the Company or the Subsidiary Guarantors conduct of their respective obligations businesses (“Environmental Permits”); (3) have not, pursuant to any contract, assumed responsibility to cure any currently identified material liability under the Transaction Documents, Environmental Law or to remediate any currently identified Hazardous Substances (as applicable, except the registration under the Securities Act of the Securities and Guarantees, defined below) spill or release; (4) have not received any required filings under the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(m) There has not occurred any material adverse change, notice from a governmental authority or any development involving a prospective material adverse changeother third party alleging any violation of Environmental Law or liability thereunder (including, in the conditionwithout limitation, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken liability as a whole, from that set forth in the Time “potentially responsible party” and/or for costs of Sale Prospectus.
investigating or remediating sites containing Hazardous Substances and/or damages to natural resources); (n5) There are no legal or governmental proceedings not subject to any pending or, to the knowledge of the CompanyCompany [or the Subsidiary Guarantors], threatened to which claim or other legal proceeding under any Environmental Laws against the CompanyCompany or its subsidiaries; (6) do not have knowledge of any pending Environmental Law, any Subsidiary Guarantor or any of their respective subsidiaries is a party or to which any of the properties of the Companyunsatisfied condition in an Environmental Permit, any Subsidiary Guarantor or any release of their respective subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration StatementHazardous Substances that, the Time of Sale Prospectus and the Prospectus and proceedings that would not, singly individually or in the aggregate, can reasonably be expected to have a require any material adverse effect capital expenditures to maintain the Company’s or the subsidiaries’ compliance with Environmental Law or with their Environmental Permits; and (7) does not (A) rely on the Company and its subsidiaries, taken as a wholeany third party for an indemnity for, or on the power contractual assumption of, any material remediation obligation or ability of the Company liability under Environmental Law and (B) have reasonable cause to believe that such third party will default in its obligation to comply with such indemnity or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents or to consummate the transactions contemplated by each of the Registration Statementcontractual assumption. As used in this paragraph, the Time of Sale Prospectus “Environmental Laws” means any and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(p) Neither the Company nor any Subsidiary Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectuslocal, and have fulfilled all material obligations with respect to such Permitsforeign laws, except where the failure to possess such Permits or perform such obligations would not singly or in the aggregatestatutes, reasonably be expected to have a material adverse effect on the Company and its subsidiariesordinances, taken as a whole; and except as described in the Registration Statementrules, the Time of Sale Prospectus or the Prospectusregulations, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) No labor disturbance by or dispute with employees of the Company or its subsidiaries exists or, to the knowledge of the Company, the Subsidiary Guarantors or their respective subsidiaries, is contemplated or threatened, except as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) The Company, the Subsidiary Guarantors and eachrequirements
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Each of the Company and each of the Subsidiary Guarantors Guarantors, jointly and severally represent severally, represents and warrant to warrants to, and agree with each of agrees with, the several Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending Company meets the effectiveness requirements for use of Form S-3 under the 1933 Act in connection with registration, offer and sale of the Offered Securities. At the time the Registration Statement is in effectbecame effective, the Registration Statement complied, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge as of the CompanyApplicable Time and as of the Closing Date, threatened by the Commission.
(b) (i) Each documentcomplies and will comply, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder, (ii) the 1933 Act Regulations. The Registration Statement, when at the time it became effective, did not contain andnot, as amended or supplementedof the date hereof, if applicabledoes not, will not and at the Closing Date, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and. The Prospectus, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers its date and at the Closing Date (as defined in Section 3)Date, the Time of Sale Prospectus, as then amended or supplemented by the Company did not and the Subsidiary Guarantors, if applicable, will not, not contain any an 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 Pricing Disclosure Package, (v) each broadly available road showas of the Applicable Time and at the Closing Date, if any, when considered together with the Time of Sale Prospectus, does did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) as of its date and the Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, except however, that the representations and warranties set forth in this paragraph do subsection shall not apply to statements in or omissions in from the Registration Statement, the Time of Sale Prospectus or Pricing Disclosure Package made in reliance upon and in conformity with the Prospectus based upon information relating Underwriter Information (as defined in Section 7(b)) or to any Underwriter furnished those parts of the Registration Statement which constitute the Statements of Eligibility and Qualification under the 1939 Act (the “Forms T-1”) of the Trustee that are filed as exhibits to the Company in writing by such Underwriter through the Representatives expressly for use thereinRegistration Statement.
(cb) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, Each Issuer Free Writing Prospectus conformed or will be, filed with the Commission conform in accordance with all material respects to the requirements of the Securities Act and the applicable rules 1933 Act Regulations on the date of first use, and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies complied or will comply with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the 1933 Act Regulations.
(c) The documents incorporated by reference in the Pricing Disclosure Package and the Prospectus, at the time they were or hereafter are filed with the Commission, complied or, when so filed, will comply, as the case may be, in all material respects with the requirements of the Securities 1934 Act and the applicable rules and regulations thereunder (the “1934 Act Regulations”), and, when read together and with the other information in the Pricing Disclosure Package and the Prospectus, at the time the Registration Statement became effective, as of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule IV hereto, and electronic road shows, if any, each furnished to the Representatives before first useApplicable Time, the Company has date of the Prospectus and on the Closing Date, did not prepared, used or referred to, and will not, without as of such time or dates, as the Representatives’ prior consentcase may be, preparecontain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, use in the light of the circumstances under which they were or refer toare made, any free writing prospectusnot misleading.
(d) The Offered Securities have been duly and validly authorized by the Company and, when duly executed by the Company in accordance with the terms of the Indenture, assuming due authentication of the Offered Securities by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The Offered Securities will conform in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the Prospectus.
(e) The Guarantee by each Subsidiary Guarantor has been duly incorporatedand validly authorized by such Subsidiary Guarantor and when duly endorsed on the Offered Securities by such Subsidiary Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Offered Securities in accordance with the Indenture against payment therefor in accordance with the terms hereof, will constitute valid and binding obligations of such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The Guarantees will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.
(f) The Company and each Subsidiary Guarantor has been duly incorporated or formed and is validly an existing corporation or other entity in good standing under the laws of its state of incorporation or organization, with power and authority (corporate and other organizational) to own its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus; and the Company and each Subsidiary Guarantor is duly qualified to do business as a foreign corporation or other entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the current or future condition (financial or other), business, properties or results of operations of the Company, the Subsidiary Guarantors and any other subsidiary of the Company, taken as a whole (a “Material Adverse Effect”). The Company and each of the Subsidiary Guarantors has all requisite power and authority (corporate and other organizational) to enter into the Operative Documents and to authorize, issue and sell the Offered Securities and the Guarantees, as the case may be, as contemplated by this Agreement.
(g) Each subsidiary of the Company (other than a Subsidiary Guarantor) has been duly incorporated or formed and is an existing corporation or other entity in good standing under the laws of the jurisdiction of its incorporationincorporation or organization, has the corporate with power and authority (corporate and other organizational) to own or lease its property properties and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectus Prospectus; and each such subsidiary is duly qualified to transact do business and is as a foreign corporation or other entity in good standing in each jurisdiction all other jurisdictions in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect.
(eh) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus Pricing Disclosure Package and the Prospectus, and all . All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly authorized and issued and are fully paid and non-assessable.
(f) Each . All of the issued and outstanding shares of capital stock of each Subsidiary Guarantor and of each other subsidiary of the Company has been duly incorporatedauthorized and validly issued and is fully paid and nonassessable and the shares of capital stock of each Subsidiary Guarantor and of each other subsidiary owned by the Company, organized directly or formedthrough subsidiaries, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporationowned free from liens, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power encumbrances and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent the concept of good standing is applicable in such jurisdiction)defects, except to the extent that the failure to be so qualified or be in good standing as (i) would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on Material Adverse Effect, (ii) may exist or arise pursuant to or in connection with the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, debt agreements described in the case of any foreign subsidiary, for directors’ qualifying shares) and except as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party Registration Statement (other than transfer restrictions under applicable securities laws and liens permitted by the debt instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries described in each of the Registration Statementcollectively, the Time of Sale Prospectus “Debt Agreements”) or (iii) disclosed in the Pricing Disclosure Package and the Prospectus.
(gi) Each The Indenture has been duly and validly authorized by the Company and each of the Subsidiary Guarantors, and upon its execution and delivery and, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and binding obligations of the Company and the Subsidiary Guarantors has full power and authority to execute and deliver this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) to which it is a party (collectively, the “Transaction Documents”) and to perform its respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly taken.
(h) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the CompanyGuarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, fraudulent conveyance or transfer, insolvency, fraudulent transfer, reorganization, moratorium moratorium, and other laws relating to or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles. The Indenture will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.
(j) Except as disclosed in the Pricing Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company or any of the Subsidiary Guarantors and any person that would give rise to a valid claim against the Company, any Subsidiary Guarantor or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the sale of the Offered Securities.
(k) Except for the Registration Rights Agreement dated August 16, 2004 between the Company and TTWF LP and except as described in the Pricing Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company or any Subsidiary Guarantor and any person granting such person the right to require the Company or such Subsidiary Guarantor to file a registration statement under the 1933 Act with respect to any securities of the Company or such Subsidiary Guarantor owned or to be owned by equitable principles relating such person or to enforceability (collectively, require the “Enforceability Exceptions”); Company or such Subsidiary Guarantor to include such securities in the Tenth Supplemental Indenture has been duly authorized securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company and each or such Subsidiary Guarantor andunder the 1933 Act that have not been validly waived or satisfied prior to the date hereof.
(l) No consent, when duly authorizedapproval, executed authorization, or order of, or filing with, any governmental agency of the United States or body or any court with jurisdiction in the United States is required to be obtained or made by the Company or any of the Subsidiary Guarantors for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and delivered made or will be obtained and made prior to the date hereof under the 1933 Act (provided, however, a filing with the Commission pursuant to Rule 424(b), Rule 430, Rule 430B or Rule 433 may be made after the date hereof so long as such filing is made within the time period specified in accordance with its terms the applicable provision of such rule) and such as may be required under state securities or blue sky laws.
(m) The execution, delivery and performance of the Operative Documents by the Company and the Subsidiary Guarantors, and assuming due authorization, execution and delivery thereof by the Trusteeconsummation of the transactions herein contemplated, will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a valid and legally binding agreement default under, (A) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary Guarantor or any other subsidiary of the Company and each or any of their respective properties, or (B) any agreement or instrument to which the Company, any Subsidiary Guarantor or any other subsidiary of the Subsidiary Guarantors enforceable against Company is a party or by which any of them is bound or to which any of their respective properties is subject, or (C) any of their respective charters or by-laws or other organizational documents, other than, in the Company and each case of clauses (A) or (B) above, such conflicts, breaches, violations or defaults that would not, individually or in the Subsidiary Guarantorsaggregate, as applicable, subject to the Enforceability Exceptions; the Indenture has been duly qualified by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)have a Material Adverse Effect.
(i) The Securities have been duly authorized by the Company and, when executed and delivered by the Company pursuant to the terms of this Agreement, and assuming due authentication thereof by the Trustee, will be duly executed, authenticated, issued and delivered as provided in the Indenture, and when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Subsidiary Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding agreements of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(jn) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors.
(ko) Each Transaction Document conforms Except as disclosed in all material respects to the description thereof contained in Pricing Disclosure Package and the Prospectus, the Company, each of the Subsidiary Guarantors and each of the other subsidiaries of the Company has (A) good and indefeasible title to (in the case of fee interests in real property), (B) valid leasehold interests in (in the case of leasehold interests in real or personal property) and (C) valid title to (in the case of all other personal property), all of its respective properties and assets reflected in the Company’s consolidated financial statements included in the Registration Statement, the Time of Sale Prospectus Pricing Disclosure Package and the ProspectusProspectus free and clear of all liens, encumbrances and defects, except for such failures to have such title to or interests in, and for such liens, encumbrances and defects, as would not, individually or in the aggregate, have a Material Adverse Effect.
(lp) The execution and delivery by the Company and each of Company, the Subsidiary Guarantors of and each other subsidiary of the Transaction Documents Company possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to which each is conduct the business now operated by them, except as would not, individually or in the aggregate, have a partyMaterial Adverse Effect, and have not received any notice of proceedings relating to the issuance and sale revocation or modification of the Securities and the issuance of the Guarantees and the performance by the Company and each of the Subsidiary Guarantors of its respective obligations underany such certificate, the Transaction Documentsauthority or permit that, as applicable, will not contravene (i) any provision of applicable law, (ii) their respective charters, bylaws or similar organizational documents, (iii) any agreement or other instrument binding upon if determined adversely to the Company, the Subsidiary Guarantors or any of the Company’s or Subsidiary Guarantors’ respective subsidiaries that is material to the Company and its subsidiariessuch subsidiary, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or its subsidiaries, except, in the cases of clauses (i), (iii) and (iv) above, as would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents, as applicable. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company or the Subsidiary Guarantors of their respective obligations under the Transaction Documents, as applicable, except the registration under the Securities Act of the Securities and Guarantees, any required filings under the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(m) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(n) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company, any Subsidiary Guarantor or any of their respective subsidiaries is a party or to which any of the properties of the Company, any Subsidiary Guarantor or any of their respective subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(p) Neither the Company nor any Subsidiary Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amendedMaterial Adverse Effect.
(q) The Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and have fulfilled all material obligations with respect to such Permits, except where the failure to possess such Permits or perform such obligations would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) No labor disturbance by or dispute with the employees of the Company, the Subsidiary Guarantors or any other subsidiary of the Company or its subsidiaries exists or, to the knowledge of the Company, Company or any of the Subsidiary Guarantors or their respective subsidiariesGuarantors, is contemplated or threatened, except as imminent that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect.
(sr) The Company, the Subsidiary Guarantors and eachthe other subsidiaries of the Company own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, except as would not, individually or in the aggregate, have a Material Adverse Effect, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company, the Subsidiary Guarantors or any such subsidiary, would individually or in the aggregate have a Material Adverse Effect.
(s) Except as disclosed in the Pricing Disclosure Package and the Prospectus, and except for such matters as would not, individually or in the aggregate, have a Material Adverse Effect or be required to be disclosed in the Prospectus by the Commission pursuant to the 1933 Act Regulations, the Company, the Subsidiary Guarantors and the other subsidiaries of the Company (or, to the knowledge of the Company or the Subsidiary Guarantors, any other entity for whose acts or omissions the Company is or the Subsidiary Guarantors are or may be liable) (1) are conducting and have conducted their businesses, operations and facilities in compliance with Environmental Laws (as defined below); (2) possess and maintain in full force and effect any and all permits, licenses or registrations required under Environmental Law for the conduct of their businesses (“Environmental Permits”); (3) have not, pursuant to any contract, assumed responsibility to cure any currently identified material liability under Environmental Law or to remediate any currently identified Hazardous Substances (as defined below) spill or release; (4) have not received any notice from a governmental authority or any other third party alleging any violation of Environmental Law or liability thereunder (including, without limitation, liability as a “potentially responsible party” and/or for costs of investigating or remediat
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and each of the Subsidiary Guarantors jointly and severally represent and warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company and the Subsidiary Guarantors, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) as of its date and the Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule IV hereto, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(f) Each subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent the concept of good standing is applicable in such jurisdiction), except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and except as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (other than transfer restrictions under applicable securities laws and liens permitted by the debt instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus).
(g) Each of the Company and the Subsidiary Guarantors has full power and authority to execute and deliver this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) to which it is a party (collectively, the “Transaction Documents”) and to perform its respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly taken.
(h) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); the Tenth Eleventh Supplemental Indenture has been duly authorized by the Company and each Subsidiary Guarantor and, when duly authorized, executed and delivered in accordance with its terms by the Company and the Subsidiary Guarantors, and assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and legally binding agreement of the Company and each of the Subsidiary Guarantors enforceable against the Company and each of the Subsidiary Guarantors, as applicable, subject to the Enforceability Exceptions; the Indenture has been duly qualified by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(i) The Securities have been duly authorized by the Company and, when executed and delivered by the Company pursuant to the terms of this Agreement, and assuming due authentication thereof by the Trustee, will be duly executed, authenticated, issued and delivered as provided in the Indenture, and when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Subsidiary Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding agreements of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(j) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors.
(k) Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(l) The execution and delivery by the Company and each of the Subsidiary Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the issuance of the Guarantees and the performance by the Company and each of the Subsidiary Guarantors of its respective obligations under, the Transaction Documents, as applicable, will not contravene (i) any provision of applicable law, (ii) their respective charters, bylaws or similar organizational documents, (iii) any agreement or other instrument binding upon the Company, the Subsidiary Guarantors or any of the Company’s or Subsidiary Guarantors’ respective subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or its subsidiaries, except, in the cases of clauses (i), (iii) and (iv) above, as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents, as applicable. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company or the Subsidiary Guarantors of their respective obligations under the Transaction Documents, as applicable, except the registration under the Securities Act of the Securities and Guarantees, any required filings under the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(m) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(n) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company, any Subsidiary Guarantor or any of their respective subsidiaries is a party or to which any of the properties of the Company, any Subsidiary Guarantor or any of their respective subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(p) Neither the Company nor any Subsidiary Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and have fulfilled all material obligations with respect to such Permits, except where the failure to possess such Permits or perform such obligations would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) No labor disturbance by or dispute with employees of the Company or its subsidiaries exists or, to the knowledge of the Company, the Subsidiary Guarantors or their respective subsidiaries, is contemplated or threatened, except as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) The Company, the Subsidiary Guarantors and each
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Representations and Warranties of the Company and the Subsidiary Guarantors. The Company and each of the Subsidiary Guarantors jointly and severally represent and warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company and the Subsidiary Guarantors, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) as of its date and the Closing Date, the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule IV hereto, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(f) Each subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation, organization or formation (to the extent the concept of good standing is applicable in such jurisdiction), has the corporate or other business entity power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification (to the extent the concept of good standing is applicable in such jurisdiction), except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and except as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (other than transfer restrictions under applicable securities laws and liens permitted by the debt instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus).
(g) Each of the Company and the Subsidiary Guarantors has full power and authority to execute and deliver this Agreement, the Securities and the Indenture (including the Guarantees set forth therein) to which it is a party (collectively, the “Transaction Documents”) and to perform its respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby has been duly and validly taken.
(h) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability ExceptionsExceptions ”); the Tenth Twelfth Supplemental Indenture has been duly authorized by the Company and each Subsidiary Guarantor and, when duly authorized, executed and delivered in accordance with its terms by the Company and the Subsidiary Guarantors, and assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and legally binding agreement of the Company and each of the Subsidiary Guarantors enforceable against the Company and each of the Subsidiary Guarantors, as applicable, subject to the Enforceability Exceptions; the Indenture has been duly qualified by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(i) The Securities have been duly authorized by the Company and, when executed and delivered by the Company pursuant to the terms of this Agreement, and assuming due authentication thereof by the Trustee, will be duly executed, authenticated, issued and delivered as provided in the Indenture, and when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Subsidiary Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding agreements of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(j) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors.
(k) Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(l) The execution and delivery by the Company and each of the Subsidiary Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the issuance of the Guarantees and the performance by the Company and each of the Subsidiary Guarantors of its their respective obligations under, the Transaction Documents, as applicable, will not contravene (i) any provision of applicable law, (ii) their respective charters, bylaws or similar organizational documents, (iii) any agreement or other instrument binding upon the Company, the Subsidiary Guarantors or any of the Company’s or Subsidiary Guarantors’ respective subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or its subsidiaries, except, in the cases of clauses (i), (iii) and (iv) above, as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents, as applicable. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company or the Subsidiary Guarantors of their respective obligations under the Transaction Documents, as applicable, except the registration under the Securities Act of the Securities and Guarantees, any required filings under the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(m) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(n) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company, any Subsidiary Guarantor or any of their respective subsidiaries is a party or to which any of the properties of the Company, any Subsidiary Guarantor or any of their respective subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company or the Subsidiary Guarantors to perform their respective obligations under the Transaction Documents or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(p) Neither the Company nor any Subsidiary Guarantor is, and after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, none of them will be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and have fulfilled all material obligations with respect to such Permits, except where the failure to possess such Permits or perform such obligations would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) No labor disturbance by or dispute with employees of the Company or its subsidiaries exists or, to the knowledge of the Company, the Subsidiary Guarantors or their respective subsidiaries, is contemplated or threatened, except as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) The Company, the Subsidiary Guarantors and eachan
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