Representations and Warranties of the Company and the Subsidiary Guarantors. Each of the Company and the Subsidiary Guarantors represents and warrants to and agrees 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 are pending before or threatened by the Commission. (c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Texas, has the corporate power and authority to own its property and to conduct its business as described in 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 have a material adverse effect on the Company and its subsidiaries, taken as a whole. (d) Each subsidiary of 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 its property and to conduct its business as described in 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 have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company or a subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims. (e) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors. 4 4 (f) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized,executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such matters. (g) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such matters. (i) The execution and delivery by each of the Company and the Subsidiary Guarantors of, and the performance by each of the Company and the Subsidiary Guarantors of their respective obligations under, this Agreement, the Indenture and the Securities, as the case may be, will not contravene any provision of applicable law or the articles or certificate of incorporation or by-laws of the Company or such Subsidiary Guarantor, as the case may be, or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company and the Subsidiary Guarantors of their respective obligations under this Agreement, the Indenture or the Securities, as the case may be, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities. (j) 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 Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement). (l) 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 rules and regulations of the Commission thereunder. (m) None of the Company and the Subsidiary Guarantors is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended. (n) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. (o) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, 7 7 any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. (p) The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba.
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. Each of the The Company and the Subsidiary Guarantors represents jointly and warrants severally represent and warrant to and agrees with each of the Underwriters that:Initial Purchaser as set forth below in this Section 1.
(a) The Registration Statement has become effective; no stop order suspending the effectiveness Each of the Registration Statement Company, the Subsidiary Guarantors and their respective subsidiaries is in effecta corporation or partnership, duly incorporated or formed and no proceedings for such purpose are pending before or threatened by the Commission.
(c) The Company has been duly incorporated, is validly existing as a corporation or partnership in good standing under the laws of the State of Texasjurisdiction in which it is chartered, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus organized or formed and is duly qualified to transact do business as a foreign corporation or partnership and is in good standing in under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except in such jurisdictions 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 qualify would not have a material adverse effect on the Company Company, the Subsidiary Guarantors and its subsidiaries, their respective subsidiaries taken as a whole.
(db) Each subsidiary of the Company Company, the Subsidiary Guarantors and their respective subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the full power (corporate power and authority other) to own or lease its property properties and to conduct its business as described in the Prospectus Final Memorandum; 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 have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company or a subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors. 4 4
(f) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized,executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such matters.
(g) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such matters.
(i) The execution and delivery by each of the Company and the Subsidiary Guarantors of, have full power (corporate and the performance by each of the Company and the Subsidiary Guarantors of their respective obligations under, other) to enter into this Agreement, the Indenture Indenture, the Notes and the SecuritiesRegistration Agreement, dated as of November 27, 1996, among the case may beCompany, will not contravene any provision of applicable law or the articles or certificate of incorporation or by-laws of the Company or such Subsidiary Guarantor, as the case may be, or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company and the Subsidiary Guarantors of their respective obligations under this Agreementand the Initial Purchasers (the "REGISTRATION AGREEMENT") (collectively, the Indenture or "TRANSACTION DOCUMENTS") to which it is a party and to carry out all the Securitiesterms and provisions hereof and thereof to be carried out by it, as including, without limitation, the case may beissuance, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer sale and sale delivery of the Securities.
(jc) 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 The issued shares of capital stock of each of the Company Company's subsidiaries have been duly authorized and its subsidiariesvalidly issued, taken are fully paid and nonassessable and, except as a whole, from that otherwise set forth in the Prospectus (exclusive Final Memorandum, are owned beneficially, directly or indirectly, by the Company free and clear of any amendments security interests, liens, encumbrances, preemptive rights or supplements thereto subsequent to the date of this Agreement)claims.
(l) 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 rules and regulations of the Commission thereunder.
(m) None of the Company and the Subsidiary Guarantors is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, 7 7 any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(pd) The Company has complied with all provisions of Section 517.075an authorized, Florida Statutes relating issued and outstanding equity capitalization as set forth in the Final Memorandum (except for issuances, if any, subsequent to doing business with September 30, 1996 pursuant to the Government of Cuba or with any person or affiliate located in Cuba.Company's stock option plans). All
Appears in 1 contract
Representations and Warranties of the Company and the Subsidiary Guarantors. Each of the The Company and the Subsidiary Guarantors represents Guarantors, jointly and warrants to severally, represent and agrees with each of warrant to, and agree with, the Underwriters Initial Purchaser that:
(a) The Registration Statement has become effective; no stop order suspending A preliminary offering circular, dated May 30, 1997 (the effectiveness "Preliminary Offering Circular"), and an offering circular, dated June 17, 1997 (the "Offering Circular"), relating to the Offered Securities to be offered by the Initial Purchaser have been prepared by the Company. Such Preliminary Offering Circular and Offering Circular are hereinafter collectively referred to as the "Offering Document". As of their respective dates and, in the case of the Registration Statement is Offering Circular, as of the date of this Agreement, the Offering Document does not include any untrue statement of a material fact or omit to state any material fact necessary in effectorder to make the statements therein, and no proceedings in the light of the circumstances under which they were made, not misleading, except for such purpose are pending before misstatements or threatened omissions in the Preliminary Offering Circular that were corrected in the Offering Circular. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by the CommissionInitial Purchaser specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof.
(cb) The Company has been duly incorporated, incorporated and is validly an existing as a corporation in good standing under the laws of the State of TexasDelaware, has the corporate with power and authority (corporate and other) to own its property properties and to conduct its business as described in the Prospectus and Offering Document; the Company is duly qualified to transact do business and is as a foreign corporation 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 so qualify could not reasonably be so qualified or be in good standing would not expected to have a material adverse effect on upon the condition (financial or other), results of operations, business affairs or business prospects of the Company and its subsidiaries, taken as a wholewhole (a "Material Adverse Effect"); and all of the issued and outstanding capital stock of the Company has been duly authorized and issued, is fully paid and nonassessable and is owned by Holdings.
(dc) Each subsidiary of the Company has been duly incorporated, incorporated and is validly an existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate with power and authority (corporate and other) to own its property properties and to conduct its business as described in the Prospectus Offering Document; and each subsidiary of the Company is duly qualified to transact do business and is as a foreign corporation 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 so qualify could not reasonably be so qualified or be in good standing would not expected to have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect; all of the issued shares of and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects, except for liens incurred in relation to the Company's credit facility with ▇▇▇▇▇▇ Financial (the "▇▇▇▇▇▇ Credit Facility").
(d) The Indenture has been duly authorized by the Company and the Subsidiary Guarantors; the Offered Securities have been duly authorized by the Company; the Guaranty of the Offered Securities by each Subsidiary Guarantor has been duly authorized by such Subsidiary Guarantor; and validly authorized when the Offered Securities are delivered and issuedpaid for pursuant to this Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered by the Company and the Subsidiary Guarantors, such Offered Securities will have been duly executed, authenticated, issued and delivered by the Company and (together with the Guaranty) will conform to the description thereof contained in the Offering Document and the Indenture, such Offered Securities and the Guaranty will constitute valid and legally binding obligations of the Company and the Subsidiary Guarantors, as the case may be, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors and conforms in all material respects to the description thereof contained in the Offering Document. The Registration Rights Agreement constitutes a valid and legally binding obligation of each of the Company and the Subsidiary Guarantors.
(f) The Recapitalization Agreement has been duly authorized, executed and delivered by Holdings and conforms in all material respects to the descriptions thereof in the Offering Document. The Recapitalization Agreement constitutes a valid and legally binding obligation of Holdings.
(g) Except as disclosed in the Offering Document, there are fully paid no contracts, agreements or understandings between the Company and non-assessable any person that would give rise to a valid claim against the Company or the Initial Purchaser for a brokerage commission, finder's fee or other like payment in connection with the offering of the Offered Securities.
(h) Except as provided in Schedule 2(h), no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by the Operative Documents or the Recapitalization Agreement or in connection with the issuance and are owned directly sale of the Offered Securities by the Company or the Units by Holdings, other than as may be required under the Securities Act and the Rules and Regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required by state securities or blue sky laws in connection with the offer and sale of the Offered Securities, except where failure to obtain such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect or would not materially and adversely affect the legal, valid and binding obligations of the Company under the Operative Documents, the ability of the Company to perform its obligations under any of the Operative Documents or which are otherwise material in the context of the sale of the Offered Securities.
(i) The execution, delivery and performance of the Operative Documents, the Recapitalization Agreement and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over Holdings, the Company or any subsidiary of the CompanyCompany or any of their properties, free (ii) any agreement or instrument to which Holdings, the Company or any such subsidiary is a party or by which Holdings, the Company or any such subsidiary is bound or to which any of the properties of Holdings, the Company or any such subsidiary is subject or (iii) the charter or by-laws of Holdings, the Company or any such subsidiary; and clear the Company and the Subsidiary Guarantors have full power and authority to authorize, issue and sell the Offered Securities (and related Guaranty) as contemplated by this Agreement, except, in the case of all liensthe clause (i) or (ii), encumbrancessuch breaches, equities violations or claimsdefaults that individually or in the aggregate could not be reasonably expected to have a Material Adverse Effect or would not materially and adversely affect the legal, valid and binding obligations of the Company under the Operative Documents, the ability of the Company to perform its obligations under any of the Operative Documents or which are otherwise material in the context of the sale of the Offered Securities.
(ej) This Agreement has been duly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors. 4 4.
(fk) The Indenture has been duly qualified under Except as disclosed in the Trust Indenture Act and has been duly authorized,executed and delivered by Offering Document, the Company and is a its subsidiaries have good and marketable title to all material real properties and all other material properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them, except for liens incurred in relation to the ▇▇▇▇▇▇ Credit Facility; and except as disclosed in the Offering Document, the Company and its subsidiaries hold any leased real or personal property under valid and binding agreement enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
(l) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, no labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, enforceable in accordance with its terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such mattersis imminent that might have a Material Adverse Effect.
(gn) The Securities Except as disclosed in the Offering Document, the Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "Intellectual Property Rights") necessary to conduct the business now operated by them, except where the failure to possess or acquire such Intellectual Property Rights could not reasonably be expected to have been duly authorized anda Material Adverse Effect, when executed or presently employed by them, and authenticated 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 or any of its subsidiaries, would individually or in accordance with the provisions aggregate have a Material Adverse Effect.
(o) Except as disclosed in the Offering Document, neither the Company nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the Indenture environment or human exposure to hazardous or toxic substances (collectively, "Environmental Laws"), or owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and delivered the Company is not aware of any pending investigation which might lead to such a claim.
(p) Except as disclosed in the Offering Document, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or would materially and paid for by adversely affect the Underwriters in accordance with the terms of this Agreementlegal, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company under the Operative Documents, the ability of the Company to perform its obligations under any of the Operative Documents or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings are threatened or, to the Company's knowledge, enforceable in accordance with their terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally, (ii) rights of acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability and (iii) general principles of equity may affect such matterscontemplated.
(iq) The execution Company has delivered to the Initial Purchaser true and delivery by each correct copies of the Recapitalization Agreement in the form as originally executed, and there have been no amendments or waivers thereto or in the exhibits or schedules thereto other than those as to which the Initial Purchaser shall have been advised.
(r) The historical financial statements included in the Offering Document present fairly the financial position of the Company and its consolidated subsidiaries as of the Subsidiary Guarantors ofdates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Offering Document, such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis and the assumptions used in preparing the pro forma financial statements included in the Offering Document provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the performance by each pro forma columns therein reflect the proper application of the Company and the Subsidiary Guarantors of their respective obligations under, this Agreement, the Indenture and the Securities, as the case may be, will not contravene any provision of applicable law or the articles or certificate of incorporation or by-laws of the Company or such Subsidiary Guarantor, as the case may be, or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material those adjustments to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company and the Subsidiary Guarantors of their respective obligations under this Agreement, the Indenture or the Securities, as the case may be, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securitiescorresponding historical financial statement amounts.
(js) There Except as disclosed in the Offering Document, since the date of the latest audited financial statements included in the Offering Document there has not occurred any been no material adverse change, or nor any development or event involving a prospective material adverse change, in the condition, condition (financial or otherwiseother), business, properties or in the earnings, business or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole, from that set forth and, except as disclosed in or contemplated by the Prospectus (exclusive Offering Document, there has been no dividend or distribution of any amendments kind declared, paid or supplements thereto subsequent to made by the date Company on any class of this Agreement)its capital stock.
(lt) Each preliminary prospectus filed as part Neither the Company nor any Subsidiary Guarantor is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the registration statement as originally filed or as part United States Investment Company Act of any amendment thereto, or filed pursuant to Rule 424 under 1940 (the Securities "Investment Company Act, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder.
(m) None of "); neither the Company nor any Subsidiary Guarantor is a closed-end investment company required to be registered, but not registered, thereunder; and the Subsidiary Guarantors is andnor, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the ProspectusOffering Document, will be any of them be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amendedAct.
(nu) The Company No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Securities or the Guaranty are listed on any national securities exchange registered under Section 6 of the United States Securities Exchange Act of 1934 ("Exchange Act") or quoted in a U.S. automated inter-dealer quotation system.
(v) Assuming the correctness of the representations and warranties of the Initial Purchaser contained in Section 4, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act; and it is not necessary to qualify an indenture in respect of the Offered Securities or the Guaranty under the United States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(w) Neither the Company, nor any of its subsidiaries affiliates, nor any person acting on its or their behalf (i) are in compliance with any and all applicable foreignhas, federal, state and local laws and regulations relating within the six-month period prior to the protection of human health and safetydate hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act) the Offered Securities, the environment Guaranty or hazardous any security of the same class or toxic substances series as the Offered Securities or wastes, pollutants the Guaranty (except the Senior Secured Discount Debentures offered by Holdings in connection with the transactions contemplated by the Recapitalization Agreement) or contaminants ("Environmental Laws"), (ii) have received all permits, licenses has offered or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and will offer or sell the Offered Securities or the Guaranty (iiiA) are in compliance with all terms and conditions the United States by means of any such permit, license form of general solicitation or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with general advertising within the terms and conditions meaning of such permits, licenses or approvals would not, singly or in Rule 502(c) under the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, 7 7 any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba.Securities Act
Appears in 1 contract