Representations and Warranties of the Issuers. (a) The Company represents and warrants to and agrees with each of the Underwriters that: (i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein. (ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information. (iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus. (iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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. (vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus. (vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise. (viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise. (ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims. (x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement. (xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees. (xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers. (xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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. (xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise. (xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”). (xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regis
Appears in 1 contract
Representations and Warranties of the Issuers. The Company, the Co-Issuer and the Guarantors jointly and severally represent and warrant to, and agree with, the Initial Purchaser that:
(a) The Company represents and warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; Preliminary Memorandum, as of the Effective Timeits date, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amendeddid not contain, and the rules Final Memorandum, in the form used by the Initial Purchaser to confirm sales and regulations of on the Commission thereunder (collectivelyClosing Date, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and thereto, as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectusdate, did not, and at on the Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the Company makes no representation and warranty with respect representations or warranties set forth in this paragraph shall not apply to any statements in or omissions from either Memorandum, amendment or supplement made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished in writing to the Company in writing by such Underwriter through the Representatives Initial Purchaser expressly for use therein, as specified in any Issuer Free Writing ProspectusSection 10. The statistical and industry data included in each Memorandum are based on or derived from sources that the Company believes to be reliable and accurate.
(ivb) The documents incorporated by reference Company and the Co-Issuer have each been duly organized and are each validly existing as a limited liability company or a corporation, as applicable, in good standing under the laws of its respective jurisdiction of incorporation or organization. The Company and the Co-Issuer are each duly qualified to do business as a foreign corporation or limited liability company and are in good standing under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to so qualify or be in good standing would not, individually or in the Registration Statementaggregate, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to reasonably be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely expected to have a Material Adverse Effect. "Material Adverse Effect" shall mean a material adverse changechange in or effect on (i) the business, in the operations, properties, earnings, condition (financial or otherwise), financial position, stockholders’ equity or results of operations or management of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and or (bii) there have been no transactions entered into by the Company or any ability of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free the Co-Issuer and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of each Guarantor to perform its obligations under the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this AgreementTransaction Documents.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regis
Appears in 1 contract
Sources: Purchase Agreement (Stanley-Martin Communities, LLC)
Representations and Warranties of the Issuers. (a) The Company represents and warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing DateDate (as defined below), the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date Date, did not and will not, not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) (A) The Indenture has been duly qualified under the Trust Indenture Act and Act, (B) the Base Indenture has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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 and (C) the Fourth Supplemental Indenture has been duly authorized and will be, when executed and delivered by the Issuers and each other party thereto, a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company None of the Issuers is not and, after giving effect to the offering and sale of the Securities, none of the Issuers will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries [RESERVED]
(xviii) [RESERVED]
(xix) Except as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Registh
Appears in 1 contract
Representations and Warranties of the Issuers. (a) The Company represents and warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organizationincorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, laws or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the RegisRegistration Statement, the Time of Sale Information and the Prospectus present fairly, in all material respects, the information required to be stated therein.
(xviii) Except as disclosed in the Registration Statement, the Time of Sale Inform
Appears in 1 contract
Representations and Warranties of the Issuers. (a) The Company represents Issuers, jointly and warrants severally, represent and warrant to and agrees agree with each of the Underwriters Initial Purchaser that:
(ia) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of Neither the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; Preliminary Memorandum as of the Effective Time, date thereof nor the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, Final Memorandum nor any amendment or supplement thereto as amended, and the rules and regulations of the Commission thereunder date thereof and at all times subsequent thereto up to the Closing Date (collectively, the “Trust Indenture Act”), and did not as defined in Section 3 below) contained or will not contain contains any untrue statement of a material fact or omit omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized , except that the representations and warranties set forth in this Section 2 do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by the Company; Initial Purchasers expressly for use in the Guarantees have been duly authorized by Preliminary Memorandum, the applicable Guarantors; Final Memorandum or any amendment or supplement thereto. The Preliminary Memorandum, the Final Memorandum and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities any amendment or supplement thereto complied or will have been duly executed, issued and delivered by the Issuers and will conform comply in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and with the provisions of the Indenture and will constitute valid and legally binding obligations Securities Act that would apply to such Memorandum if it were a Prospectus under the Securities Act (except that (i) no representation is made regarding compliance with the "plain English" rules of the IssuersCommission, in each case enforceable in accordance with their respective terms(ii) audited financial statements of the Company for the fiscal year ending 1996 are not included, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws (iii) four years of general applicability relating to or affecting creditors’ rights and to general equity principlesSelected Combined Consolidated Historical Financial Data are included instead of five years).
(vib) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations Each of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in EXHIBIT A-2 hereto (the Registration Statement, the Time of Sale Information and the Prospectus.
(vii"Subsidiaries") The Company has been duly incorporated and each of the Company and the Subsidiaries is validly existing in good standing as a corporation in good standing under the laws of its jurisdiction of incorporation, with the requisite corporate power and authority (corporate and other) to own its properties and conduct its business as now conducted as described in the Registration StatementFinal Memorandum (or, if the Final Memorandum is not in existence, the Time of Sale Information most recent Preliminary Memorandum) and the Prospectus, and has been is duly qualified to do business as a foreign corporation for the transaction of business and is in good standing under in all other jurisdictions where the laws ownership or leasing of each other jurisdiction in which it owns or leases its properties or conducts any the conduct of its business so as to require requires such qualification, except where the failure to be so qualified is not reasonably likely to would not, individually or in the aggregate, have a material adverse change in effect on the business, condition (financial or otherwiseother), financial positionproperties, stockholders’ equity prospects or results of operations of the Company and its subsidiariesthe Subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing taken as a corporation or whole (any such event, a limited liability company in good standing under "Material Adverse Effect"); as of the laws of its jurisdiction of incorporation or organizationClosing Date, with power the Company will have the authorized, issued and authority (corporate and other) to own its properties and conduct its business as described outstanding capitalization set forth in the Registration StatementFinal Memorandum (or, if the Final Memorandum is not in existence, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, most recent Preliminary Memorandum); except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration StatementEXHIBIT A-2 hereto, the Time Company does not have any subsidiaries or own directly or indirectly any of Sale Information and the Prospectus, and capital stock or other equity or long-term debt securities of or have any equity interest in any other person; all of the issued outstanding shares of capital stock of the Company and the Subsidiaries have been duly authorized and validly authorized and issued, are fully paid and non-assessable; nonassessable and all were not issued in violation of the issued shares of capital stock any preemptive or limited liability company interests, as applicable, of each Guarantor have been duly similar rights and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities and restrictions on transferability (other than those imposed by the Securities Act and the state securities or claims"Blue Sky" laws) or voting; except as set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) and in EXHIBIT A-2 hereto, all of the outstanding shares of capital stock of the Subsidiaries are owned, directly or indirectly, by the Company; except as set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum), no options, warrants or other rights to purchase from the Company or any Subsidiary, agreements or other obligations of the Company or any Subsidiary to issue or other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding and no holder of securities of the Company or any Subsidiary is entitled to have such securities registered under the Registration Statement; and except as set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum), there is no agreement, understanding or arrangement among the Company or any Subsidiary and each of their respective stockholders or any other person relating to the ownership or disposition of any capital stock of the Company or any Subsidiary or the election of directors of the Company or any Subsidiary or the governance of the Company's or any Subsidiary's affairs, and, if any, such agreements, understandings and arrangements will not be breached or violated as a result of the execution and delivery of, or the consummation of the transactions contemplated by, this Agreement, the other Basic Documents and the Transaction Documents.
(xc) Each of the Issuers has the requisite corporate power and authority to execute, deliver and perform its obligations under the Securities, the Exchange Notes (as defined in the Registration Rights Agreement) and the Private Exchange Notes (as defined in the Registration Rights Agreement). The executionNotes, delivery the Exchange Notes and performance the Private Exchange Notes have each been duly and validly authorized by the Company for issuance and, when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture, and, in the case of the Notes, delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding at law or in equity) (collectively, the "Enforceability Exceptions"); the Guarantees endorsed on the Notes and the guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes have each been duly and validly authorized by each of the Guarantors and, when the Notes are executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture, and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except that the enforcement thereof may be limited by the Enforceability Exceptions; the Securities are in the form contemplated by the Indenture.
(d) Each of the Issuers has the requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly and validly authorized by the Issuers and meets the requirements for qualification under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, when executed and delivered in accordance with its terms (assuming the due authorization, execution and delivery by the Trustee), will constitute a valid and legally binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms except that the enforcement thereof may be limited by the Enforceability Exceptions.
(e) Each of the Issuers has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized by the Issuers and, when executed and delivered by the Issuers, will constitute a valid and legally binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms except that the enforcement thereof may be limited by the Enforceability Exceptions and except as any rights to indemnity or contribution hereunder may be limited by federal and state securities laws and public policy considerations.
(f) Each of the Issuers has the requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by the Issuers and, when executed and delivered by the Issuers, will constitute a valid and legally binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms except that the enforcement thereof may be limited by the Enforceability Exceptions and except as any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. The Securities, the Indenture and the Registration Rights Agreement conform in all material respects to the descriptions thereof in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum).
(g) Each of the Issuers has the requisite corporate power and authority to execute and deliver (to the extent a party) and perform its direct and indirect obligations under the Transaction Documents. The Transaction Documents have been duly and validly authorized by the Issuers and Issuer Parents (to the extent a party thereto) and, when executed and delivered by the Issuers and Issuer Parents party thereto, will constitute valid and legally binding agreements of such Issuers and Issuer Parents, enforceable against such Issuers and Issuer Parents in accordance with their terms except that the enforcement thereof may be limited by the Enforceability Exceptions and except as any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. The descriptions of the Transaction Documents in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) are accurate in all respects material to the affairs of the Issuers.
(i) The Issuers have delivered to the Initial Purchasers a true and correct copy of each of the Transaction Documents that have been executed and delivered prior to the date of this Agreement and each other Transaction Document in the issuance form substantially as it will be executed and sale delivered on or prior to the Closing Date, together with all related agreements and all schedules and exhibits thereto, and as of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with date hereof there have been no amendments, alterations, modifications or result in a breach or violation waivers of any of the terms provisions of any of the Transaction Documents since their date of execution except as have been delivered to the Initial Purchasers or provisions ofsuch amendments, alterations, modifications or waivers are not material; and (ii) there exists as of the date hereof (after giving effect to the transactions contemplated by each of the Transaction Documents) no event or condition that would constitute a default under, any material indenture, mortgage, deed or an event of trust, loan agreement or other material agreement or instrument to which default (in each case as defined in each of the Company is a party or by which the Company is bound or to which Transaction Documents) under any of the property Transaction Documents that would result in a Material Adverse Effect or assets materially adversely affect the ability of the Company is subject, nor will such actions result to consummate the Transactions.
(i) Except as set forth in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company Final Memorandum (or, to if the best of its knowledgeFinal Memorandum is not in existence, any statute the most recent Preliminary Memorandum), no consent, approval, authorization, license, qualification, exemption or any order, rule or regulation order of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body third party is required for the issuance and sale performance of this Agreement, the Securities Registration Rights Agreement, the Securities, the Indenture or any Transaction Document by the Issuers or Issuer Parents or for the consummation by the Company of any of the transactions contemplated by this Agreementhereby and thereby, or the application of the proceeds of the issuance of the Securities as described in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum), except (i) as has already been acquired, (ii) as may be required under state securities or "Blue Sky" laws in connection with the purchase and distribution of the Securities by the Initial Purchasers, (iii) as may be required in connection with the registration of the Securities, Exchange Notes and Private Exchange Notes, as the case may be, pursuant to the Registration Rights Agreement and the qualification of the Indenture under the TIA and (iv) the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect; all such consents, approvals, authorizations, registrations or qualifications as may licenses, qualifications, exemptions and orders set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) which are required to be required under state or foreign securities or “blue sky” laws or as obtained by the Closing Date have been obtained under or made, as the Securities Act or case may be, and are in full force and effect, except as could not reasonably be expected to result in a Material Adverse Effect, and not the Trust Indenture Act in connection with subject of any pending or, to the issuance and sale best knowledge of the Securities Issuers, threatened attack by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreementappeal or direct proceeding or otherwise.
(xij) The execution, delivery and performance None of the Indenture and this Agreement and Company or the issuance and sale Subsidiaries is (i) in violation of the Securities and the compliance by each its certificate of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with incorporation or result bylaws (or similar organizational document), (ii) in a breach or violation of any of the terms or provisions ofstatute, or constitute a default underjudgment, any indenturedecree, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors applicable to it or any of their respective properties; and no consentits properties or assets, approvalwhich breach or violation would, authorizationindividually or in the aggregate, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicableMaterial Adverse Effect, or (Biii) in default (nor has any event occurred which with notice or passage of time, or both, would constitute a default) in the performance or observance of any obligation, agreement, covenant or condition contained in this Agreement, the Registration Rights Agreement, the Securities, the Indenture or any Transaction Document or any other contract, indenture, mortgage, deed of trust, loan agreement, lease note, lease, license, franchise agreement, permit, certificate or other agreement or instrument to which it is a party or by to which it or any of its properties may be boundis subject, where such which default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to havewould, individually or in the aggregate, have a material adverse change Material Adverse Effect.
(k) The execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement, the Securities, the Indenture and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby and by the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) and the fulfillment of the terms hereof and thereof will not, except as set forth in the condition Final Memorandum (financial or otherwise)if the Final Memorandum is not in existence, financial positionthe most recent Preliminary Memorandum) (a) violate, stockholders’ equity conflict with or results constitute or result in a breach of operations or a default under (or an event that, with notice or lapse of time, or both, would constitute a breach of or a default under) any of (i) the terms or provisions of any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate or agreement or instrument to which any of the Company and its subsidiariesor the Subsidiaries is a party or to which any of their respective properties or assets are subject, considered as one enterprise; and, to (ii) the best certificate of the Company’s knowledge, no such proceedings are threatened incorporation or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale bylaws of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position any of the Company and its consolidated subsidiaries as or the Subsidiaries (or similar organizational document) or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws) any statute, judgment, decree, order, rule or regulation of any court or governmental agency or other body applicable to the Company or the Subsidiaries or any of their respective properties or assets or (b) result in the imposition of any lien upon or with respect to any of the dates shown and their results properties or assets now owned or hereafter acquired by the Company or any of operations and cash flows for the periods shownSubsidiaries, andwhich violation, except as otherwise disclosed in the Registration Statementconflict, the Time of Sale Information and the Prospectusbreach, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regisdefault or lien would,
Appears in 1 contract
Representations and Warranties of the Issuers. Each of the Issuers represents and warrants to the Initial Purchasers that:
(a) The Company represents Preliminary Offering Memorandum and warrants Offering Memorandum with respect to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of Notes have been prepared by the Securities Act that has been filed Issuers for use by the Initial Purchasers in connection with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to Exempt Resales. No order or decree preventing the use of such registration statement the Preliminary Offering Memorandum or the Offering Memorandum or any post-effective amendment thereto pursuant or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to Rule 401(g)(2) under the Securities registration requirements of the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose has commenced or pursuant is pending or, to Section 8A the knowledge of the Securities Act against Issuers, is contemplated.
(b) The Preliminary Offering Memorandum and the Company or related to the offering has been initiated or threatened by the Commission; Offering Memorandum as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amendedtheir respective dates do not, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and Offering Memorandum as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;, except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum made in reliance upon and in conformity with information relating to the Initial Purchasers furnished to the Issuers in writing by or on behalf of the Initial Purchasers expressly for use therein.
(vc) Each Indenture has been duly and validly authorized by each of the Issuers and, upon its execution and delivery by each of the Issuers and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and binding agreement of each of the Issuers, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' right generally and limits imposed by equitable principles, and conforms in all material respects to the description thereof in the Offering Memorandum; no qualification of either Indenture under the 1939 Act is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales.
(d) The Securities Notes have been duly authorized by the Company; Trust and the Subsidiary Guarantees have been duly authorized by each of the applicable Guarantors; Guarantors and when the Securities Notes are executed by the Trust and the Subsidiary Guarantees are executed by each of the Guarantors and such Notes and Subsidiary Guarantees are authenticated by the Trustee in accordance with the appropriate Indenture and the Notes and Subsidiary Guarantees are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by Initial Purchasers against payment therefor in accordance with the trustee under terms hereof, the Indenture, such Securities Notes will have been duly executed, validly issued and delivered delivered, and will constitute a valid and binding obligation of the Trust and the Subsidiary Guarantees will have been validly issued and delivered, and will constitute valid and binding obligations of each of the Guarantors and the Notes and Subsidiary Guarantees shall be entitled to the benefits of the appropriate Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the Issuers enforcement of creditors' rights generally and limits imposed by equitable principles, and the Notes and Subsidiary Guarantees will conform in all material respects to the description descriptions thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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 principlesOffering Memorandum.
(vie) Since All the date outstanding shares of capital stock or membership interests, as appropriate, of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there each Subsidiary have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, duly authorized and validly issued and are material to the Company fully paid and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectusnonassessable.
(viif) The Company Each Subsidiary that is a corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporationincorporation and each Subsidiary that is a limited liability company is a limited liability corporation duly formed and validly existing under the laws of its jurisdiction of formation; the Trust is a validly existing grantor trust under the laws of Michigan; the Trust has no subsidiaries other than the Trust Subsidiaries and each such Trust Subsidiary is owned by the Trust directly or indirectly, with through one or more of the Trust Subsidiaries, free and clear of any lien, adverse claim, security interest, equity or other encumbrance, other than pursuant to the New Credit Facility; Peguform has no material subsidiaries other than the Peguform Subsidiaries and each such subsidiary is owned by Peguform directly or indirectly, through one or more of the Peguform Subsidiaries, free and clear of any lien, adverse claim, security interest, equity or other encumbrance, other than pursuant to the New Credit Facility. Each Subsidiary has the corporate or limited liability company, as appropriate, power and authority (corporate authority, and other) the Trust has all necessary power and authority, to own its properties and conduct carry on its business as described in the Registration StatementOffering Memorandum and to own, the Time of Sale Information lease and the Prospectus, and has been operate its properties; each Subsidiary is duly qualified and in good standing as a foreign corporation for or limited liability company, as appropriate, authorized to do business in each jurisdiction or place where the transaction nature of business and is in good standing under the laws of each other jurisdiction in which it owns or leases its properties or conducts any the conduct of its business so as to require requires such registration or qualification, except where the failure to be so qualified is register or qualify does not reasonably likely to have have, individually or in the aggregate, a material adverse change in effect on the condition (financial or otherwiseother), financial positionbusiness, stockholders’ equity prospects, properties, net worth or results of operations of the Company Trust and its subsidiaries, considered the Subsidiaries taken as one enterprisea whole (a "Material Adverse Effect"). The Trust is not required to register or qualify as a foreign entity in any jurisdiction.
(viiig) Each Guarantor has been duly incorporated There are no legal or organized and is validly existing as a corporation or a limited liability company in good standing under governmental proceedings pending or, to the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations knowledge of the applicable Guarantor and its subsidiariesIssuers, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in threatened, against the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock Trust or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms Subsidiaries or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party Trust or by which any of the Company is bound Subsidiaries or to which any of the property or assets of the Company their respective properties, is subject, nor will such actions result that are not disclosed in the Offering Memorandum which would cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the transactions contemplated by this Agreement. There are no material obligations of the Trust or the Subsidiaries by way of agreements, contracts, indentures, leases or other instruments that are not described in the Offering Memorandum other than specific purchase orders, agreements and contracts with customers in the ordinary course of business. Other than as described in the Preliminary Offering Memorandum and the Offering Memorandum, none of the Trust or the Subsidiaries is involved in any violation strike, job action or labor dispute with any group of employees, which, singly or in the provisions of the Certificate of Incorporation or By-laws of the Company oraggregate would have a Material Adverse Effect and, to the best Issuers' knowledge, no such action or dispute is threatened.
(h) None of the Trust or the Subsidiaries is (A) in violation of its knowledgecertificate or articles of incorporation, or bylaws or other organizational documents, or of any statute law, ordinance, administrative or any order, governmental rule or regulation applicable to the Trust or any of the Subsidiaries or of any decree of any court or governmental agency or body having jurisdiction over the Company Trust or any of its properties; and no consentthe Subsidiaries or (B) in default in the performance of any obligation, approvalagreement or condition contained in any bond, authorizationdebenture, ordernote or any other evidence of indebtedness or in any material agreement, decreeindenture, registration lease or qualification other instrument to which the Trust or any of the Subsidiaries is a party or with by which any of them or any of their respective properties may be bound, except to the extent any such court violation or governmental agency default, in the case of (A) or body is required for the issuance and sale (B), as does not or will not have a Material Adverse Effect.
(i) None of the Securities issuance, offer, sale or delivery of the Notes and Subsidiary Guarantees, the execution, delivery or performance of this Agreement, the Indentures or the Registration Rights Agreement by the Issuers or the consummation by the Company Trust or the Subsidiaries of the transactions contemplated by this Agreementhereby or thereby (including, without limitation, the Acquisition) (A) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale registration under the Act of the Securities by Notes and the Issuers; Subsidiary Guarantees and each qualification of the Issuers has full power and authority to authorize, issue and sell Indentures under the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of 1939 Act in accordance with the Indenture and this Registration Rights Agreement and compliance with the issuance and sale securities or Blue Sky laws of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein various jurisdictions), or conflicts or will not conflict with or result in constitutes or will constitute a breach of, or violation a default under, the certificate or articles of incorporation, bylaws or other organizational documents, of the Trust or any of the terms Subsidiaries, (B) conflicts or provisions will conflict with or constitutes or will constitute a breach of, or constitute a default under, any agreement, indenture, mortgage, deed of trust, loan agreement lease or other instrument to which the Trust or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, (C) violates or will violate in any material respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Trust or any of the Subsidiaries or any of their respective properties, or (D) will result in the creation or imposition of any lien, charge or encumbrance ("Lien") upon any property or assets of the Trust or any of the Subsidiaries pursuant to the terms of any agreement or instrument to which any of the Guarantors are them is a party or by which any of the Guarantors are them may be bound or to which any of the property or assets of any of the Guarantors are them is subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xiij) This Agreement has been duly authorizedThe accountants, executed and delivered by each Deloitte & Touche LLP, who have certified or shall certify the financial statements of the Issuers.
Trust and its consolidated subsidiaries included as part of the Offering Memorandum (xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorizedor any amendment or supplement thereto), executed and delivered by are independent certified public accountants with respect to each of the Issuers within the meaning of Regulation S-X under the Act.
(k) The accountants, BDO International GmbH who have certified or shall certify the financial statements of Peguform and is a valid and legally binding obligation its consolidated subsidiaries included as part of the IssuersOffering Memorandum (or any amendment or supplement thereto), enforceable are independent certified public accountants with respect to Peguform and its subsidiaries within the meaning of Regulation S-X under the Act.
(l) The historical consolidated financial statements, together with related schedules and notes included in the Offering Memorandum, present fairly in all material respects the consolidated financial position, results of operations and changes in trust principal or stockholders' equity, as the case may be, and cash flows of the Issuers and Peguform, as appropriate, at the respective dates or for the respective periods to which they apply; and such statements and related schedules and notes have been prepared in accordance with its termsgenerally accepted accounting principles consistently applied throughout the periods involved, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium except as disclosed therein. The pro forma financial statements and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default pro forma information included in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus Offering Memorandum present fairly, in all material respects, the information shown therein, comply as to form in all material respects with Regulation S-X (except with respect to the calculation of EBITDA and Adjusted EBITDA) and have been properly compiled on the pro forma bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions or circumstances referred to therein. The other financial position and statistical information and data included in the Offering Memorandum (and any amendment or supplement thereto) is accurately presented and, to the extent such information and data is derived from the financial books and records of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shownIssuers or Peguform, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, is prepared on a basis consistent with such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regisand the
Appears in 1 contract
Representations and Warranties of the Issuers. In order to induce the Purchasers to enter into this letter agreement and make the Advances requested in connection with the Tescorp Acquisition, each of the Issuers makes the following representations and warranties, all of which shall survive the execution and delivery of this letter agreement and the making of the Advances, with the occurrence of each Funding in connection with the Tescorp Acquisition being deemed to constitute a representation and warranty that the representations and warranties made pursuant to this paragraph 4 are true and correct on the date of Funding (it being understood and agreed that any representation and warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date):
(a) The Company represents Each of the representations and warrants to warranties of the Issuers contained in Section 6 of the Note Purchase Agreement and agrees with each of the Underwriters that:representations and warranties of Tescorp Delaware in Article VI of the Tescorp Purchase Agreement are true and correct. To the knowledge of the Issuers, each of the representations and warranties made by Tescorp Texas in Article V of the Tescorp Purchase Agreement are true and correct.
(ib) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 In connection with the transactions contemplated by the Tescorp Acquisition Agreement, Tescorp Delaware and, to the knowledge of the Issuers, Tescorp Texas have complied and will comply, in all material respects, with all requirements of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 19391933, as amended, and the all rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder.
(c) Each of the Commission thereunder Issuers (including, Tescorp Delaware) has the power and authority to execute, deliver and perform the terms and provisions of this letter agreement and the pledge agreements and other documents and instruments required to be executed and delivered pursuant hereto to which it is party (collectively, the “Trust Indenture Act”)"Documents") and has taken all corporate or other action necessary to authorize the execution, delivery and did not or will not contain any untrue statement performance by it of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; each such Document as has been executed and delivered as of the each date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no this representation and warranty with respect to (i) that part is made. Each of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents Tescorp Delaware) has duly executed and representativesdelivered each of the Documents to which it is party, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or Document constitutes its agents legal, valid and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed binding obligation enforceable against it in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective its terms, subject to except as such enforcement may be limited by applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganization, moratorium and reorganization or other similar laws of general applicability relating to or affecting creditors’ ' rights and to generally or by general equity principles.
(vid) Since Neither the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and or performance by any Issuer (including, Tescorp Delaware) of the Indenture Documents to which it is a party, nor compliance by it with the terms and this Agreement and provisions thereof, nor the issuance and sale use of the Securities and the compliance by the Company with all proceeds of the provisions thereof and the consummation by the Company of the transactions Advances as contemplated herein and in the Note Purchase Agreement (i) will not contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or governmental instrumentality binding on any such Issuer, (ii) will conflict or be inconsistent with or result in a any breach or violation of any of the terms terms, covenants, conditions or provisions of, or constitute a default underin respect of, or result in the creation or imposition of (or the obligation to create or impose) any material indentureLien (other than Liens created pursuant to the Security Documents) upon, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation Issuer or By-laws of the Company or, pursuant to the best terms of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, credit agreement, loan agreement or any other agreement material agreement, contract or instrument to which any of the Guarantors are Issuer is a party or by which any of the Guarantors are such Issuer or its properties or assets is bound or to which any such Issuer may be subject or (iii) will violate any provision of the property estatutos sociales, articles of incorporation, bylaws or assets other organizational documents of any of the Guarantors are subjectIssuer.
(e) Upon execution and delivery, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any each of the Guarantors or, pledge agreements required to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each pursuant to paragraph 5.c hereof will be effective to (i) create in favor of the Issuers.
(xiii) The Indenture has been duly qualified under Collateral Agent for the Trust Indenture Act and has been duly authorized, executed and delivered by each benefit of the Issuers and is Purchasers, a legal, valid and legally binding obligation enforceable fully perfected first priority Lien on and security interest in the Stock referred to therein, and (ii) create in favor of the IssuersBridge Collateral Agent for the benefit of the Bridge Purchasers, a legal, valid and enforceable fully perfected second priority Lien on and security interest in accordance with its termssuch Stock, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlesno other Liens.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regis
Appears in 1 contract
Representations and Warranties of the Issuers. (a) The Company represents and warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organizationincorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (Ai) in violation of its Certificate of Incorporation or By-laws, laws or other organizational document, as applicable, or (Bii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the RegisRegistration Statement, the Time of Sale Information and the Prospectus present fairly, in all material respects, the information required to be stated therein.
(xviii) Except as disclosed in the Registration Statement, the Time of Sale Informa
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to and agree with the Initial Purchaser as of the date hereof and as of the Time of Purchase as follows:
(a) The Company represents Final Memorandum, as of its date and warrants at all times subsequent thereto up to and agrees with each including the Time of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective TimePurchase, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939did not, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;, except that the representations and warranties set forth in this Section 3.1(a) do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Initial Purchaser furnished to the Issuers in writing by the Initial Purchaser expressly for use in the Final Memorandum or any amendment or supplement thereto.
(vb) The Securities financial statements of AOALP and AOAI, together with the related notes and schedules thereto, set forth in the Final Memorandum fairly present the financial condition of AOALP and AOAI as of the dates indicated and the results of operations and changes in financial position for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein), except that the unaudited interim financial statements are subject to normal year-end adjustments. The pro forma financial data included in the Final Memorandum has been prepared using reasonable assumptions and in accordance with the applicable requirements of the Act and include all adjustments necessary to present fairly the pro forma financial information included within the Final Memorandum at the respective dates and for the respective periods indicated. Each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and KPMG LLP, each of which is reporting upon certain of the audited financial statements and schedules included in the Memoranda, is an independent public accounting firm as required by the Act and the rules and regulations thereunder.
(c) The Company and AOALP have been duly authorized by organized and are validly existing and in good standing as a limited liability company and a limited partnership, respectively, under the Company; laws of the Guarantees State of Minnesota and have filed all reports with the Secretary of State of Minnesota required to obtain a certificate of existence from that office. Capital Corp. and AOAI have been duly authorized by the applicable Guarantors; incorporated and when the Securities are delivered validly existing and paid for pursuant to this Agreement on the Closing Date (in good standing as defined below) assuming due authentication by the trustee corporations under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions laws of the Indenture State of Minnesota and will constitute valid and legally binding obligations have filed all reports with the Secretary of State of Minnesota required to obtain a certificate of existence from that office. Each of the Issuers, AOALP and AOAI is duly qualified and in good standing as a foreign limited liability company, limited partnership or corporation, as the case may be, and is authorized to do business, in each case enforceable jurisdiction in accordance with their respective terms, subject which the ownership or leasing of any property or the character of its operations makes such qualification necessary and in which the failure so to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principlesqualify could have a Material Adverse Effect.
(vid) Since As of the date as of which information is given indicated in the Registration StatementMemoranda, the Time of Sale Information and Company had the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed issued and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regisoutstanding capi-
Appears in 1 contract
Representations and Warranties of the Issuers. Each of the Issuers hereby, jointly and severally, represents, warrants and covenants to the Initial Purchasers as follows:
(a) The Company represents and warrants to and agrees with each hereby confirms that it has authorized the use of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 Disclosure Package, the Preliminary Offering Memorandum and the Final Offering Memorandum in connection with the offer and sale of the Securities Act that has been by the Initial Purchasers. Each document, if any, filed with the Commission not earlier than three years prior or to be filed pursuant to the date hereof; Securities Exchange Act of 1934, as amended (the “Exchange Act”) and no notice of objection of incorporated by reference in the Commission to Disclosure Package or the use of such registration statement Final Offering Memorandum complied or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied will comply when it is filed in all material respects with the Securities Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) thereunder. The Time of Sale InformationPreliminary Offering Memorandum, at the Time of Sale and at the Closing Date date thereof, did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that . At the Company makes no representation date of this Agreement, the First Closing Date and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through Second Closing Date, the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have Final Offering Memorandum did not prepared, made, used, authorized, approved or referred to and will not prepare(and any amendment or supplement thereto, makeat the date thereof, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under at the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, First Closing Date and at the Second Closing Date Date, will not, ) contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes and the Subsidiary Guarantors make no representation and or warranty with respect as to any statements information contained in or omissions made in each such Issuer Free Writing Prospectus omitted from the Preliminary Offering Memorandum or the Final Offering Memorandum or amendments or supplements thereto in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly or on behalf of any Initial Purchaser specifically for use in any Issuer Free Writing Prospectustherein as set forth on Schedule C hereto.
(ivb) The documents incorporated by reference in term “Disclosure Package” shall mean (i) the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conformPreliminary Offering Memorandum, as amended or supplemented at the case may beApplicable Time, (ii) the Final Term Sheet (as defined herein) and (iii) any other writings that the parties expressly agree in all material respects with the requirements writing to treat as part of the Exchange Act, and Disclosure Package (“Issuer Written Information”). The Disclosure Package as of 6:00 p.m. (Eastern time) on the date hereof (the “Applicable Time”) did not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) . The Securities have been duly authorized by preceding sentence does not apply to statements in or omissions from the Company; the Guarantees have been duly authorized by the applicable Guarantors; Disclosure Package in reliance upon and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance conformity with their respective 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.
(vi) Since the date as of which written information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material furnished to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course by or on behalf of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation any Initial Purchaser specifically for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization use therein as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimson Schedule C hereto.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regis
Appears in 1 contract
Representations and Warranties of the Issuers. (a) The Company and each Guarantor represents and warrants to and agrees with each of the Underwriters that:
(ia) The Registration Statement is an “automatic shelf registration statement” as defined Company meets the requirements under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; Rules and no notice of objection of the Commission to the Regulations for use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) Form S-3 under the Securities Act has been received by the CompanyAct. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the The Registration Statement and the Prospectus conform, and the Final Prospectus contemplated by Section 5(a) hereof and any amendment further amendments or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished supplements to the Company in writing by such Underwriter through Registration Statement or the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Final Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) andwill, when taken together with the Preliminary Prospectus accompanying, they become effective or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when are filed with the Commission, conformed or will conform, as the case may be, conform, in each case, in all material respects with to the requirements of the Exchange Act, Act and did the Rules and Regulations and do not and will not not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Preliminary Prospectus and the Final Prospectus and any additional amendment or supplement to the Final Prospectus), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant provided that no representation or warranty is made as to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof information contained in or omitted from the Registration Statement, the Time of Sale Information and Preliminary Prospectus or the Final Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights the Underwriters in reliance upon and in conformity with written information furnished to general equity principlesthe Company by Deutsche Bank Securities Inc. specifically for inclusion therein.
(vib) Since the date as of which information is given The reports incorporated by reference or deemed to be incorporated in the Registration StatementFinal Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder (the "Exchange Act Regulations").
(c) All of the subsidiaries of the Company are listed in Schedule 2 attached hereto (each, a "Subsidiary" and collectively, the Time "Subsidiaries"); all of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ outstanding equity or results of operations interests of the Company and its subsidiariesthe Subsidiaries have been, considered and as one enterpriseof the Closing Date will be, whether duly authorized and validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or not arising similar rights; except as set forth in the ordinary course Final Prospectus, all of business, and (b) there have been no transactions entered into the outstanding equity interests of each of the Subsidiaries that are owned by the Company will be free and clear of all liens, encumbrances, equities and claims or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, restrictions on transferability (other than those transactions imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting; except (i) in de minimis amounts, (ii) for Investee Stores (as defined in the ordinary course of businessFinal Prospectus), except, in each case, (iii) as otherwise set forth on Schedule 3 hereto, or contemplated (iv) as disclosed in the Registration StatementFinal Prospectus, the Time of Sale Information and the ProspectusCompany does not own, directly or indirectly, any long-term debt securities or any equity interest in any firm, partnership, joint venture or other entity.
(viid) The Company has been the long-term debt and shareholders' equity as set forth in the Final Prospectus. Each of the Company and the Subsidiaries is duly incorporated and is organized or formed, validly existing as a corporation and in good standing under the laws of its respective jurisdiction of incorporation, with organization or formation and has all requisite corporate or organizational power and authority (corporate and other) to own its properties and conduct its business as now conducted and as described in the Registration Statement, Final Prospectus; each of the Time of Sale Information Company and the Prospectus, and has been Subsidiaries is duly qualified to do business as a foreign corporation for the transaction of business and is or organization in good standing under in all other jurisdictions where the laws ownership or leasing of each other jurisdiction in which it owns or leases its properties or conducts any the conduct of its business so as to require requires such qualification, except where the failure to be so qualified is not reasonably likely to would not, individually or in the aggregate, have a material adverse change in effect on the condition (financial or otherwise)business, financial positioncondition, stockholders’ equity prospects or results of operations of the Company and its subsidiariesthe Subsidiaries taken as a whole (any such event, considered as one enterprisea "Material Adverse Effect").
(viiie) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization Except as set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus, each Issuer has all requisite corporate or organizational power and all of the issued shares of capital stock of the Company have been duly authority to execute, deliver and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and perform its obligations under this Agreement and to consummate the transactions contemplated hereby (including, without limitation, the issuance and sale of the Securities Securities). This Agreement has been duly authorized, executed and delivered by each Issuer.
(f) The Base Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the compliance rules and regulations thereunder (the "TIA"). The Base Indenture has been duly authorized, executed and delivered by the Company with all and (assuming the due authorization, execution and delivery of the provisions Indenture by the Trustee) constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the consummation discretion of the court before which any proceeding is brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(g) Except as set forth in the Final Prospectus, each Issuer has all requisite corporate or organizational power and authority to execute, deliver and perform its obligations under the Indenture. Except as set forth in the Final Prospectus, the Indenture has been duly authorized by each Issuer and when executed and delivered by each Issuer (assuming the due authorization, execution and delivery of the Indenture by the Trustee) will constitute a valid and legally binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding is brought (regardless of whether such enforcement is considered in a proceeding in equity or at law). The Supplemental Indenture when executed and delivered (assuming due authorization, execution and delivery of the Supplemental Indenture by the Trustee) will be in the form contemplated by the Indenture.
(h) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Notes. The Notes, when executed and delivered, will be in the form contemplated by the Indenture. Except as set forth in the Final Prospectus, the Notes have been duly authorized by the Company and when executed and delivered by the Company and authenticated by the Trustee and paid for by the Underwriters in accordance with the terms of this Agreement will constitute a valid and legally binding agreement of the transactions contemplated herein will not conflict Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or result other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding is brought (regardless of whether such enforcement is considered in a breach proceeding in equity or violation of any of at law).
(i) Each Guarantor has all requisite corporate or organizational power and authority to execute, deliver and perform its obligations under the terms or provisions ofGuarantees. The Guarantees, or constitute a default underwhen executed and delivered, any material indenturewill be in the form contemplated by the Indenture. Except as set forth in the Final Prospectus, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or Guarantees have been duly authorized by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result each Guarantor and when executed and delivered by each Guarantor in any violation of accordance with the provisions of the Certificate Indenture will constitute the valid and legally binding agreements of Incorporation each Guarantor, enforceable against each Guarantor in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or By-other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the Company orcourt before which any proceeding is brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(j) No consent, to the best of its knowledgeapproval, any statute authorization or any order, rule or regulation order of any court or governmental agency or body having jurisdiction over the Company body, or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body third party is required for the issuance and sale of the Securities or the consummation by the Company Issuers of the other transactions contemplated by this Agreementhereby, except such consentsas have been obtained, approvals, authorizations, registrations such as will become effective at or qualifications prior to the issuance of the Securities and such as may be required under state or foreign securities or “blue sky” "Blue Sky" laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each Underwriters. None of the Issuers has full power and authority is (i) in violation of its certificate of incorporation or bylaws (or similar organizational document), (ii) to authorizethe Issuers' knowledge, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any statute, judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, or (iii) in breach of or in default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subjectinstrument pertaining to indebtedness, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other note, lease, license, franchise agreement or instrument permit to which it any of them is a party or by to which it or any of its them or their respective properties may be boundor assets is subject (collectively, where such default is reasonably likely to result in a material adverse change "Contracts"), except in the condition case of clauses (financial ii) and (iii) for any such breach, default, violation or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to haveevent that would not, individually or in the aggregate, have a material adverse change Material Adverse Effect.
(k) Except as set forth in the condition Final Prospectus, the execution, delivery and performance by each Issuer of the Indenture and the consummation by the Issuers of the transactions contemplated hereby (financial including, without limitation, the issuance and sale of the Securities to the Underwriters) will not conflict with or otherwiseconstitute or result in a breach of or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract (except for the Company's existing Credit Agreement, which Credit Agreement will be repaid upon consummation of the transactions contemplated hereby), (ii) the certificate of incorporation or bylaws (or similar organizational document) of any of the Issuers or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws by the Underwriters) any statute, judgment, decree, order, rule or regulation applicable to any of the Issuers or any of their respective properties or assets, except in the case of clauses (i) and (iii) for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(l) The consolidated financial statements of the Company (including the notes thereto) included or incorporated by reference in the Final Prospectus present fairly in all material respects the financial position, stockholders’ equity or results of operations and cash flows of the Company and its subsidiariesthe Subsidiaries at the dates and for the periods to which they relate and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis ("GAAP"), considered except as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) otherwise stated therein. The Company is not and, after giving effect to the offering summary and sale of the Securities, will not be an “investment company,” as such term is defined selected financial data in the Investment Company Act of 1940Final Prospectus present fairly in all material respects the information shown therein and have been prepared and compiled on a basis consistent with the audited financial statements included therein. Except as otherwise stated therein, as amended (the “Investment Company Act”).
(xvii) The pro forma financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and Final Prospectus present fairly, comply as to form in all material respectsrespects with the applicable requirements of Regulation S-X under the Exchange Act. The assumptions used in preparing the pro forma financial statements included or incorporated by reference in the Final Prospectus 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 pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial position statement amounts. Notwithstanding anything to the contrary contained herein, no representation or warranty is made under this clause (l) with respect to EBITDA, Adjusted EBITDA or any ratio based thereon or derived therefrom.
(m) Deloitte & Touche LLP (the "Independent Accountants") is an independent public accounting firm with respect to the Company within the meaning of the Act and the Rules and Regulations.
(n) Except as set forth in the Final Prospectus, there is not pending or, to the knowledge of the Issuers, threatened any action, suit, proceeding, inquiry or investigation to which the Company or any of the Subsidiaries is a party, or to which the property or assets of the Company or any of the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body that, if determined adversely to the Company or any of the Subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect or that seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities or the consummation of the other transactions described in the Final Prospectus.
(o) Each of the Company and the Subsidiaries possesses all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, presently required or necessary to own or lease, as the case may be, and to operate its consolidated subsidiaries respective properties and to carry on its respective businesses as now or proposed to be conducted as set forth in the Final Prospectus ("Permits") (except, with respect to Permits which the Company and the Subsidiaries do not presently possess which would be necessary solely for future business proposed to be conducted by the Company and the Subsidiaries ("Future Permits"), which Future Permits the Company and the Subsidiaries reasonably believe will be obtained), except where the failure to obtain such Permits would not, individually or in the aggregate, have a Material Adverse Effect; each of the dates shown Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits or in the case of the Future Permits, the Company and the Subsidiaries intend to use their reasonable best efforts to obtain such Future Permits, except where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect; no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or result in any other material impairment of the rights of the holder of any such Permit except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect; and to each Issuer's knowledge, none of the Company and the Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Final Prospectus and except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect.
(p) Since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus, except as described therein or in the Final Prospectus, (i) none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into or agreed to enter into any transactions not in the ordinary course of business, which liabilities, obligations or transactions would, individually or in the aggregate, be material to the business, financial condition, prospects or results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Registhe
Appears in 1 contract
Sources: Underwriting Agreement (Fleming Companies Inc /Ok/)
Representations and Warranties of the Issuers. (a) The Company represents and warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing DateDate (as defined below), the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date Date, did not and will not, not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiii) (A) The Indenture has been duly qualified under the Trust Indenture Act and Act, (B) the Base Indenture has been duly authorized, executed and delivered by each of the Issuers and is a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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 and (C) the First Supplemental Indenture has been duly authorized and will be, when executed and delivered by the Issuers and each other party thereto, a valid and legally binding obligation of the Issuers, enforceable in accordance with its 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.
(xiv) None of the Issuers is (A) in violation of its Certificate of Incorporation or By-laws, or other organizational document, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference in (including the Registration Statement, the Time of Sale Information and Prospectus present fairly, in all material respects, the financial position related notes thereto) of the Company and its consolidated subsidiaries as and of the dates shown CSRA Inc. (“CSRA”) and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the Regisi
Appears in 1 contract
Representations and Warranties of the Issuers. (a) The Company represents Issuers, jointly and warrants severally, represent and warrant to and agrees with each of the Underwriters Initial Purchaser that:
(ia) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to No order or decree preventing the use of such registration statement the Preliminary Offering Memorandum or the Offering Memorandum or any post-effective amendment thereto pursuant or supplement thereto, or any order as- serting that the transactions contemplated by this Agreement are subject to Rule 401(g)(2) under the Securities registration requirements of the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose has commenced or pursuant is pending or, to Section 8A the knowledge of the Securities Act against Issuers, is contemplated.
(b) The Preliminary Offering Memorandum and the Company or related to the offering has been initiated or threatened by the Commission; Offering Memorandum as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act their respective dates and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and Offering Memorandum as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and or will not contain at any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereintherein not misleading, except that this representation and warranty does not apply to statements in or omissions from the light Preliminary Offering Memorandum and Offering Memorandum made in reliance upon and in conformity with information relating to the Initial Purchaser furnished to the Issuers in writing by or on behalf of the circumstances under which they were made, not misleading;
(v) The Securities have been duly authorized by the Company; the Guarantees have been duly authorized by the applicable Guarantors; and when the Securities are delivered and paid Initial Purchaser expressly for pursuant to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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 principlesuse therein.
(vic) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.[Intentionally Omitted]
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiiid) The Indenture has been duly qualified under and validly authorized by each of the Trust Indenture Act Issuers and, upon its execution, delivery and has been duly authorized, executed and delivered performance by each of the Issuers and is assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and legally binding obligation agreement of each of the Issuers, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws the applicability of general applicability relating principles of equity; the Indenture conforms in all material respects to the description thereof in the Offering Memorandum; and no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Securities contemplated hereby or affecting creditors’ rights and to general equity principlesin connection with the Exempt Resales.
(xive) None The Senior Notes and the Guarantees have been duly authorized by the Company and each of the Issuers is (A) Guarantors, respectively, and, when executed by the Company and each of the Guarantors, respectively, and, in violation the case of its Certificate the Senior Notes, authenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchaser against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of Incorporation or By-lawsthe Company and each of the Guarantors, respectively, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other organizational documentsimilar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, as applicable, or (B) and the Securities conform in default all material respects to the description thereof in the performance or observance Offering Memorandum.
(f) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are free of any obligationpreemptive or similar rights.
(g) The Company is a corporation duly organized, agreement, covenant or condition contained validly existing and in any indenture, mortgage, deed good standing under the laws of trust, loan agreementthe State of Delaware with full corporate power and authority to own, lease or other agreement or instrument and operate its properties and to which it conduct its business as described in the Offering Memorandum, and is a party or by which it or any duly registered and qualified to conduct its business and is in good standing in each jurisdiction where the nature of its properties may be boundor the conduct of its business requires such registration or qualification, except where such default is reasonably likely the failure so to result in register or qualify would not have a material adverse change in effect on the condition (financial or otherwiseother), financial positionbusiness, stockholders’ equity prospects, properties, net worth or results of operations of the Company and its subsidiariesthe Subsidiaries, considered taken as one enterprise.
a whole (xv) Other than as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xvi) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”"Material Adverse Effect").
(xviih) The financial statements included or incorporated by reference All of the Company's "significant subsidiaries" (as defined in the Registration StatementAct) are referred to herein individually as a "Subsidiary" and collectively as the "Subsidiaries." Each Subsidiary is a corporation or partnership duly organized, validly existing and in good standing in the Time jurisdiction of Sale Information its incorporation or formation, with full corporate or partnership power and Prospectus present fairlyauthority to own, lease and operate its properties and to conduct its business as described in all material respectsthe Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction where the financial position nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or be in good standing could not have a Material Adverse Effect. All of the Company and its consolidated subsidiaries as outstanding shares of capital stock or partnership interests of each of the dates shown Subsidiaries have been duly authorized and their results validly issued, are fully paid and nonas sessable, and are wholly owned by the Company directly or 12 -12- indirectly through one of operations the other Subsidiaries, free and cash flows for the periods shownclear of any lien, andadverse claim, security interest, equity or other encumbrance, except as otherwise disclosed described in the Registration Statement, the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the RegisOffering Memorandum.
Appears in 1 contract
Sources: Purchase Agreement (Walbro Corp)
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to the Initial Purchasers that:
(a) The Company represents Preliminary Offering Memorandum and warrants Offering Memorandum with respect to and agrees with each of the Underwriters that:
(i) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has have been filed prepared by the Issuers for use by the Initial Purchasers in connection with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to Exempt Resales. No order or decree preventing the use of such registration statement the Preliminary Offering Memorandum or the Offering Memorandum, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under order asserting that the Securities Act has been received transactions contemplated by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related this Agreement are subject to the offering has been initiated or threatened by registration requirements
(b) The Preliminary Offering Memorandum and the Commission; Offering Memorandum as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act their respective dates and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and Offering Memorandum as of the Closing Date, the Prospectus complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information.
(iii) The Issuers (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents, other than the Preliminary Prospectus, listed on Schedule III to the Underwriting Agreement as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(iv) The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information when filed with the Commission, conformed or will conform, as the case may be, in all material respects with the requirements of the Exchange Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading;
(v) The Securities have been duly authorized by , except that this representation and warranty does not apply to statements in or omissions from the Company; the Guarantees have been duly authorized by the applicable Guarantors; Preliminary Offering Memorandum and when the Securities are delivered Offering Memorandum made in reliance upon and paid for pursuant in conformity with information relating to this Agreement on the Closing Date (as defined below) assuming due authentication by the trustee under the Indenture, such Securities will have been duly executed, issued and delivered by any Initial Purchaser furnished to the Issuers and will conform in all material respects to the description thereof contained in the Registration Statement, the Time writing by or on behalf of Sale Information and the Prospectus and the provisions of the Indenture and will constitute valid and legally binding obligations of the Issuers, in each case enforceable in accordance with their respective 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 principlesan Initial Purchaser expressly for use therein.
(vi) Since the date as of which information is given in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there has not been any material adverse change, or any development reasonably likely to have a material adverse change, in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, and (b) there have been no transactions entered into by the Company or any of its subsidiaries which, individually or in the aggregate, are material to the Company and its subsidiaries, considered as one enterprise, other than those transactions in the ordinary course of business, except, in each case, as otherwise set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated or organized and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and has been duly qualified as a foreign corporation (or other organization) for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure to be so qualified is not reasonably likely to have a material adverse change in the condition (financial or otherwise), financial position, or results of operations of the applicable Guarantor and its subsidiaries, considered as one enterprise.
(ix) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each Guarantor have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by the Company with all of the provisions thereof and the consummation by the Company of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the best of its knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance and sale of the Securities by the Issuers; and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture and this Agreement and the issuance and sale of the Securities and the compliance by each of the Guarantors with all of the provisions thereof and the consummation by each of the Guarantors of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Guarantors are a party or by which any of the Guarantors are bound or to which any of the property or assets of any of the Guarantors are subject, except where such conflict, breach, violation or default is not reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational document, as applicable, of any of the Guarantors or, to the best of the Company’s knowledge, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantors or any of their respective properties; and no consent, approval, authorization, order, decree, registration or qualification of or with any such court or governmental agency or body is required for the issuance of any of the Guarantees or the consummation by any of the Guarantors of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or “blue sky” laws or as have been obtained under the Securities Act or the Trust Indenture Act in connection with the issuance of the Guarantees.
(xii) This Agreement has been duly authorized, executed and delivered by each of the Issuers.
(xiiic) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered validly authorized by each of the Issuers and, upon its execution, delivery and is performance by the each of the Issuers and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and legally binding obligation agreement of each of the Issuers, enforceable in accordance with its terms, subject to except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and reorganization or other similar laws affecting creditors' rights generally and subject to the applicability of general applicability relating principles of equity; the Indenture conforms in all material respects to the description thereof in the Offering Memorandum; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Securities contemplated hereby or affecting creditors’ rights and to general equity principlesin connection with the Exempt Resales.
(xivd) None The Notes and Guarantees have been duly authorized by the Company and each of the Issuers is (A) in violation Guarantors, respectively, and, when executed by the Company and each of its Certificate of Incorporation or By-lawsthe Guarantors, or other organizational documentrespectively, as applicableand, or (B) in default in the performance or observance case of any obligationthe Notes, agreementauthenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, covenant or condition contained in any indenturewill have been validly issued and delivered, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, where such default is reasonably likely to result in a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations and will constitute valid and binding obligations of the Company and its subsidiarieseach of the Guarantors, considered respectively, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as one enterpriseenforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity; and the Securities conform in all material respects to the description thereof in the Offering Memorandum.
(xve) Other than as set forth in All the Registration Statement, the Time outstanding shares of Sale Information and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not issued in violation of any preemptive or any of its subsidiaries is the subject which is reasonably likely by the Company to have, individually or in the aggregate, a material adverse change in the condition (financial or otherwise), financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by otherssimilar rights.
(xvif) The Company is not anda corporation duly organized, after giving effect to validly existing and in good standing under the offering and sale laws of the SecuritiesState of Delaware with full corporate power and authority to own, will lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure so to qualify does not be an “investment company,” have a material adverse
(g) All the Company's subsidiaries (as such term is defined in the Investment Company Act of 1940Act) are referred to herein individually as a "Subsidiary" and collectively as the "Subsidiaries." Each Subsidiary is a corporation duly organized, as amended (the “Investment Company Act”).
(xvii) The financial statements included or incorporated by reference validly existing and in good standing in the Registration Statementjurisdiction of its incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time Offering Memorandum, and is duly qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of Sale Information and Prospectus present fairlyits properties or the conduct of its business requires such qualification, except where the failure so to qualify or be in all material respects, the financial position good standing does not have a Material Adverse Effect. All of the Company and its consolidated subsidiaries as outstanding shares of capital stock of each of the dates shown Subsidiaries have been duly authorized and their results validly issued, are fully paid and nonassessable, and are wholly owned by the Company directly or indirectly through one of operations the other Subsidiaries, free and cash flows for the periods shownclear of any lien, andadverse claim, security interest, equity or other encumbrance, except as otherwise disclosed described in the Registration Statement, Offering Memorandum and except for restrictions on transferability imposed by the Time of Sale Information and the Prospectus, such financial statements have been prepared in conformity with accounting principles generally accepted in the United States; any schedules included in the RegisAct or applicable state securities or Blue Sky laws.
Appears in 1 contract
Sources: Purchase Agreement (KCS Energy Inc)