Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that: (a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus. (b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein. (c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus. (d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein. (e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein. (g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto. (h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 4 contracts
Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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)Securities, (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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting the Time of Sale Information and (v) any electronic road show roadshow or other written communications, in each case approved in writing in advance by the RepresentativeRepresentatives. Each communication by the Company or its agents and representatives referred to in clauses (iv) and (v) is referred to herein as an “Issuer Free Writing Prospectus.” Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company through its fiscal year ended September 30, 2018, was a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act during all relevant periods and, to the Company’s knowledge, was not, during all relevant periods, in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”). Ernst & Young LLP is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and Act. Xxxxx & Xxxxx LLP has been serving as the rules and regulations adopted pursuant theretoCompany’s independent accountant since the quarter ended December 31, 2018.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 3 contracts
Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)
Representations and Warranties of the Issuers. The Each of the Issuers, jointly and severally, represent represents and warrant to each Underwriter warrants to, and agrees with, the several Purchasers that:
(a) Each A preliminary prospectus included offering circular dated July 25, 2003 (the "Preliminary Offering Circular") has been prepared by the Issuers and an offering circular dated the date hereof (the "Offering Circular") relating to the Offered Securities has been prepared by the Issuers. Such Preliminary Offering Circular and Offering Circular, as part supplemented as of the registration statement as originally filed or as part date of this Agreement, and any amendment or supplement thereto, or filed pursuant to Rule 424 under other document approved by the Act, complied when so filed Company for use in all material respects connection with the provisions contemplated resale of the ActOffered Securities, are hereinafter collectively referred to as the "Offering Document," which term shall include the portions of the documents specifically incorporated by reference therein (the "Incorporated Information"). The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale Preliminary Offering Circular did not, as of the date thereof, and at the Closing Date will Offering Circular (in the form used by the Purchasers to confirm sales) as of its date does 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, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as . The preceding sentence does not apply to information relating to an Underwriter contained statements in or omitted omissions from the Registration Statement Preliminary Offering Circular or the Prospectus in reliance Offering Circular based upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Underwriter any Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically for inclusion use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof.
(eb) The Incorporated DocumentsNo order or decree preventing the use of the Offering Document, at or any order asserting that the time they were filed with transactions contemplated by this Agreement are subject to the Commission compliedregistration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements knowledge of the Act Company or the Securities Exchange Act of 1934, as amended, and the published rules and regulations any of the Commission thereunder (collectivelyGuarantors, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, 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 misleadingis contemplated.
(fc) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who Each Issuer has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly incorporated or formed and are validly is an existing corporation, limited liability company, limited partnership or general partnership in good standing under the laws of their respective jurisdictions its state of organization, are with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and each Issuer is duly qualified to do business and are as a foreign corporation in good standing in each jurisdiction all other jurisdictions in which their respective its ownership or lease of property or the conduct of their respective businesses its business requires such qualification qualification, except where to the extent the failure to so qualifyqualify or be in good standing could not reasonably be expected to have a material adverse effect on the condition (financial or other), singly or business, properties, results of operations or, to the knowledge of the Issuers, prospects of Dynegy Inc. and its subsidiaries, taken as a whole (a "Material Adverse Effect"). Each Issuer has all requisite corporate power and authority to enter into the Operative Documents and each Issuer has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.
(d) Illinois Power Company has been duly incorporated and is an existing corporation in good standing under the laws of Illinois, with power and authority (corporate and other) to own its properties and conduct its business as described in the aggregateOffering Document; and is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, would except to the extent the failure to so qualify or be in good standing could not reasonably be expected to have a Material Adverse Effect, and have all power and authority necessary to own or hold .
(e) None of the Issuers nor any of their respective properties subsidiaries is (i) in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Issuers and their respective subsidiaries, taken as a whole, to conduct which the businesses Issuers or their respective subsidiaries is a party or by which the Issuers or any of their subsidiaries or their respective property is bound, except for alleged defaults with respect to certain agreements as disclosed in which they are engaged. A “the Offering Circular under the caption "Business--Legal Proceedings", or (ii) in violation of its respective charter or by-laws, operating agreement or other organizational document that governs the existence or administration of such entity, in each case, except as could not reasonably be expected to have a Material Adverse Effect” means any material adverse effect on the financial condition.
(f) (i) As of March 31, results of operations2003, business or prospects each of the Company and Dynegy Inc. has an authorized capitalization as set forth in the Offering Document, under the heading "Capitalization of Dynegy Holdings Inc. - Actual," and "Capitalization of Dynegy Inc. - Actual" respectively, (ii) all of the issued shares of capital stock of each of the Issuers have been duly and validly authorized and issued and are fully paid and non-assessable, (iii) all of the issued shares of capital stock of each subsidiary of Dynegy Inc. other than the Issuers have been duly and validly authorized and issued and are fully paid and non-assessable, and (iv) the capital stock of each subsidiary owned by the Company or a Guarantor, as the case may be, directly or through subsidiaries, is owned free from liens, encumbrances and material defects other than liens on Pledged Equity that secure the Offered Securities and the Priority Lien Debt.
(g) The Notes have been duly and validly authorized by the Company and, when duly executed by the Company in accordance with the terms of the Indenture, assuming due authentication of the Notes by the Trustee, upon delivery to the Purchasers against payment therefor in accordance with the terms hereof, will be validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, 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 therefore may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law). On the Closing Date (as defined below), the Notes will conform to the descriptions thereof contained in the Offering Circular.
(h) The Guarantees to be issued by each of the Guarantors have been, or as of the Closing Date will have been, duly and validly authorized by each Guarantor and, when duly executed and delivered by each Guarantor in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Notes in accordance with the Indenture and the attachment of the Guarantee thereto and the issuance of the Offered Securities in the sale to the Purchasers contemplated by this Agreement, will constitute valid and binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, 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 therefore may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law). On the Closing Date, the Guarantees will conform to the description thereof in the Offering Circular.
(i) The Indenture has been, or as of the Closing Date will have been, duly and validly authorized by each of the Issuers, and upon its subsidiaries taken execution and delivery and, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, 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 therefore may be brought (regardless of whether such enforcement is considered in a wholeproceeding in equity or at law); and assuming the accuracy of the Purchasers' representations and warranties and the Purchasers' compliance with the agreements in Section 4 hereof and compliance with the limitations and restrictions contained under the heading "Transfer Restrictions" in the Offering Circular, no qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the "TIA") is required in connection with the offer and sale of the Offered Securities contemplated hereby; and the Indenture conforms in all material respects to the requirements of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. On the Closing Date, the Indenture will conform to the description thereof in the Offering Circular.
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc /Il/)
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter and agree with the Initial Purchasers that:
(a) Each preliminary prospectus included Neither the Preliminary Memorandum as part of the registration statement as originally filed or as part of date thereof nor the Final Memorandum nor any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions thereto as of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, date thereof 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, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment times subsequent thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior up to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment 3 below) contained or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain contains any untrue statement of a material fact or omit to state any material fact required to be stated therein omitted or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit omits 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 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 Initial Purchasers expressly for use in the Preliminary Memorandum, the Final Memorandum or any amendment or supplement thereto. The documents incorporated or deemed to be incorporated by reference in any Memorandum, at the time they were or hereafter are filed with the Commission complied and will comply in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (together with the rules and regulations of the Commission promulgated thereunder, the "Exchange Act").
(b) Each of the Company and its subsidiaries set forth in Exhibit B hereto (the "Subsidiaries") has been duly incorporated and each of the Company and the Subsidiaries is validly existing in good standing as a corporation under the laws of its jurisdiction of incorporation, with the requisite corporate power and authority to own its properties and conduct its business as now conducted as described in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) and is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the business, condition (financial or other), prospects or results of operations of the Company and the Subsidiaries, taken as a whole, (any such event, a "Material Adverse Effect"); the Company had as of the date specified therein the authorized, issued and outstanding capitalization set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum); except as set forth in Exhibit B hereto, the Company does not have any subsidiaries or own directly or indirectly any of the capital stock or other equity securities of any other person; all of the outstanding shares of capital stock of the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; except as set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum), all of the outstanding shares of capital stock of the Subsidiaries 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 Act and the state securities or "Blue Sky" laws); except as set forth in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) and employee stock options granted by the Company since March 31, 1997, 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.
(c) The Securities have been duly and validly authorized by each of the Issuers for issuance and when executed by the Issuers 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 Issuers, entitled to the benefits of the Indenture and enforceable against the Issuers 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); each of the Issuers has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture and the Securities; and 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 by the Issuers (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 (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).
(d) 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 (i) that the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or 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) and (ii) as any rights to indemnity or contribution hereunder may be limited by federal and state securities laws and public policy considerations.
(e) 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 (i) that the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or 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) and (ii) as any rights to indemnity or contribution hereunder may be 6 -6- limited by federal and state securities laws and public policy considerations.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the performance of this Agreement, the Registration Rights Agreement, the Securities or the Indenture by the Issuers or to the consummation by the Issuers of any of the transactions contemplated hereby 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 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; and none of the Issuers is (i) in violation of its certificate of incorporation or bylaws, (ii) in violation of any statute, judgment, decree, order, rule or regulation applicable to it or any of its properties or assets, which violation would, individually or in the aggregate, have a Material Adverse Effect, or (iii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in this Agreement, the Registration Rights Agreement, the Securities or the Indenture or any other contract, indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate or agreement or instrument to which it is a party or to which it is subject, which default would, individually or in the aggregate, have a Material Adverse Effect.
(g) The execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement, the Securities and the Indenture and the consummation by the Issuers of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof, will not violate, conflict with or constitute or result in a breach of 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 (a) 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 or the Subsidiaries is a party or to which any of their respective properties or assets are subject, which violation, conflict, breach or default would, individually or in the aggregate, have a Material Adverse Effect, (b) the certificate of incorporation or bylaws of any of the Company or the Subsidiaries (or any similar organizational documents) or (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, which violation, conflict, breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(h) The audited consolidated financial statements (including the related notes and supporting schedules) included in the Registration StatementFinal Memorandum (or, if the Final Memorandum is not in existence, the Time of Sale Information and the Prospectus most recent Preliminary Memorandum) present fairly in all material respects the consolidated financial position and position, results of operations and cash flows of the entities purported to be shown thereby, which they relate at the dates and for the periods indicated, to which they relate and have been prepared in conformity accordance with generally accepted accounting principles applied on a consistent basis, except as otherwise stated therein; the unaudited consolidated financial statements and the related notes included in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) present fairly the consolidated financial position, results of operations and cash flows of such entities at the dates and for the periods to which they relate, subject to year end audit adjustments and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout except as otherwise stated therein and have been prepared on a basis substantially consistent with that of the periods involvedaudited financial statements referred to above except as otherwise stated therein; the summary and selected financial and statistical data included in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) present fairly the information shown therein and have been prepared and compiled on a basis consistent with the audited financial statements included therein, except for changes as otherwise stated therein; and Deloitte & Touche LLP, which has examined certain of such financial statements as set forth in its reports included in the Final Memorandum, is an independent public accounting principles firm as required by the Act.
(i) The pro forma financial statements and other pro forma financial information (including the notes thereto) included in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) (A) have been prepared in accordance with applicable requirements of Regulation S-X promulgated under the Exchange Act and (B) have been properly computed on the bases described therein; and the assumptions used in the preparation of the pro forma financial statements and other pro forma financial information included in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum) are reasonable and the adjustments used therein are appropriate to give effect to the transactions or circumstances referred to therein.
(gj) PricewaterhouseCoopers LLPExcept as described in the Final Memorandum (or, who has reported on if the financial statements Final Memorandum is not in existence, the most recent Preliminary Memorandum), there is not pending or, to the best knowledge of the CompanyIssuers, threatened any action, suit, proceeding, inquiry or investigation, governmental or otherwise, to which any of the Company or the Subsidiaries is a registered independent public accounting firm with respect party, or to which their respective properties or assets are subject, before or brought by any court, arbitrator or governmental agency or body, that, if determined adversely to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualifySubsidiaries would, singly individually or in the aggregate, would not 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 to be sold hereunder or the application of the proceeds therefrom or the other transactions described in the Final Memorandum.
(k) None of the Company or the Subsidiaries has any liability for any prohibited transaction or funding deficiency or any complete or partial withdrawal liability with respect to any pension, profit sharing or other plan which is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to which any of the Company or the Subsidiaries makes or ever has made a contribution and in which any employee of any of the Company or the Subsidiaries is or has ever been a participant which liability or deficiency would, individually or in the aggregate, have a Material Adverse Effect. With respect to such plans, the Company and the Subsidiaries are in compliance in all respects with all provisions of ERISA except for any non-compliance that would not, individually or in the aggregate, have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “a Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the .
(l) The Company and its subsidiaries taken the Subsidiaries own or possess adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights and know-how that are necessary to conduct their business as a whole.described in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly --------------------------------------------- and severally, represent and warrant to each the Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or -------- ------- warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such with respect to the Underwriter specifically for inclusion therein.
(ec) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended compliedamended, complied in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “"Exchange Act”"), as applicable, and such ------------ documents do not on the date hereof, hereof and will not at on the Closing Date, Date contain an untrue statement of a material fact and do not on the date hereof, hereof and will not at on the Time of Sale or on any Closing Date, Date 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.
(fd) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and Statement or the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(ge) PricewaterhouseCoopers Ernst & Young, LLP, who has have reported on the financial statements of the Company, is a registered are independent public accounting firm accountants with respect to the Company and its subsidiaries as required by the Act andAct. Wittington, McLemore, Land, Xxxxx & White, P.C., who have reported on the financial statements of S.C. Torrey Atlanta, Ltd. and Affiliates, are independent public accountants with respect to the Company’s knowledge, is not in violation of Company and its subsidiaries as required by the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant theretoAct.
(hf) The pro forma financial statements and other pro forma financial information (including the notes thereto) in the Prospectus have been prepared in all material respects in accordance with applicable requirements of Regulation S-X promulgated under the Exchange Act and have been properly computed on the bases described therein. The material assumptions used in the preparation of the pro forma financial statements and other pro forma information in the Prospectus are set forth therein and were reasonable when made, and the adjustments used therein are appropriate to give pro forma effect to the transactions or circumstances referred to therein.
(g) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"), and have ----------------------- all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged.
(h) The Company has an authorized capitalization as set forth in the Prospectus; and all of the issued equity interests of each subsidiary of the Company have been duly authorized and validly issued and, as to shares of capital stock of any corporation constituting a subsidiary, 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 other than restrictions on transfer imposed by applicable securities laws.
(i) The execution, delivery and performance of this Agreement, the Indenture and the Securities by the Issuers, compliance by the Issuers of all the provisions hereof and thereof and the consummation of the transactions contemplated hereby 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 material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the organizational documents of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their property or assets; and except for such consents, approvals, authorizations, registrations or qualifications as may be required under the Act or applicable state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriter, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture and the Securities by the Issuers, compliance by the Issuers of all the provisions hereof and thereof and the consummation of the transactions contemplated hereby.
(j) This Agreement has been duly authorized, executed and delivered by the Issuers and is a valid and binding agreement of the Issuers enforceable in accordance with its terms (except as rights to indemnity and contribution hereunder may be limited by applicable law).
(k) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), and has been duly authorized, executed and --- delivered by the Issuers and is a valid and binding agreement of the Issuers, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.
(l) The Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Underwriter against payment therefor as provided by this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.
(m) The Guarantees have been duly authorized and, upon endorsement on the Notes by the Guarantors, execution and authentication of the Notes in accordance with the provisions of the Indenture and delivery of the Notes to the Underwriter against payment therefor as provided by this Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding obligations of the Guarantors, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.
(n) The Securities and the Indenture conform to the description thereof in the Prospectus.
(o) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements in the Prospectus, any loss or interference with the business of the Company and its subsidiaries taken as a whole from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, resulting in a Material Adverse Effect; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus.
(p) Other than as granted to the former stockholders of The Torrey Group of Companies and which are not applicable to the offering of the Securities, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.
(q) The Company and its subsidiaries own the items of real property and personal property purported to be owned by them which are material to the conduct of the business of the Company and its subsidiaries taken as a whole, free and clear of all liens, encumbrances and defects, except such as are described in the Prospectus or such as would not have a Material Adverse Effect. All real property held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as are described in the Prospectus or such as would not have a Material Adverse Effect.
(r) Except as described in 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 or assets of the Company or any of its subsidiaries is the subject which are reasonably likely to have a Material Adverse Effect; and to the Issuers' knowledge, no such proceedings are threatened by governmental authorities or by others.
(s) The conditions for use of Form S-3, as set forth in the General Instructions thereto, have been satisfied.
(t) To the Issuers' knowledge, all real property owned (either presently or at any time in the past) or presently leased by the Company and its subsidiaries in connection with the operation of their business, including, without limitation, any subsurface soils and ground water (collectively, the "Realty"), is free of contamination from any substance ------ or material presently known to be toxic or hazardous, including, without limitation, any radioactive substance, methane, volatile hydrocarbons or industrial solvents (each a "Hazardous Substance"), which -------------------
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter and agree with the Underwriters that:
(a) Each preliminary the Commission pursuant to Rule 430A and Rule 424(b), if required, or, if no prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or is required to be filed pursuant to Rule 424 under 430A or Rule 424(b), such term means the Actprospectus included in such Registration Statement, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of provided that if a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished revised prospectus shall be provided to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company for use in connection with the offering and sale of the Securities that differs from the prospectus on file at the Commission at the time such Registration Statement becomes effective or its agents as first filed under Rule 430A and representatives (other than a communication referred to in clauses (iRule 424(b), (ii) the term "Prospectus" shall refer to the revised prospectus from and (iii) below) after the time it is first provided to the Underwriters for such use. If the Company has filed an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus abbreviated registration statement to register additional securities pursuant to Section 2(a)(10)(aRule 462(b) of the Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (the "Rule 462 Registration Statement") then any reference herein to "Registration Statement" shall be deemed to include such Rule 462 Registration Statement. All references in this Agreement to the extent required therebyRegistration Statement, Preliminary Prospectus and Prospectus and to financial statements and schedules and other information that is "contained," "included," "set forth," "described in" or "stated" therein (and all other references of like import) and, when taken together with the Time of Sale Information accompanying, shall be deemed to mean and include all such financial statements and schedules and other information that is or delivered prior is deemed to delivery of, such Issuer Free Writing Prospectus, did not, be incorporated by reference therein; and at the Closing Date will not, contain any untrue statement of a material fact all references in this Agreement to amendments 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 supplements to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplementStatement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon shall be deemed to mean and in conformity with written information furnished to include the Issuers by or on behalf filing of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or any document under the Securities Exchange Act of 1934, as amended, and amended (together with the published rules and regulations of the Commission thereunder (collectivelypromulgated thereunder, the “Exchange "1934 Act”"), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale that is or on any Closing Date, omit to state a material fact required is deemed to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described incorporated by reference therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:Initial Purchaser that (for purposes of this Section 6, references to the "Company" shall be deemed to refer to the Company after giving pro forma effect to the Transactions):
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed The Offering Documents have been prepared in all material respects connection with the provisions of the ActExempt Resales. The Commission has not issued any order preventing or suspending the use Preliminary Offering Circular as of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale its date did not, and at the Offering Circular as of its date does not and as of the Closing Date will not, contain and any untrue statement of a material fact amendment or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date supplement thereto 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that no representation the representations and warranties contained in this paragraph (a) shall not apply to statements or warranty is made as to omissions in the Offering Documents (or any amendment or supplement thereto) based upon information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information Initial Purchasers furnished to the Issuers Company in writing by or on behalf of such Underwriter specifically the Initial Purchasers expressly for inclusion use therein. No stop order preventing the use of the any of the Offering Documents, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, have been issued.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(hb) The Company and each of its subsidiaries have been is a corporation duly formed and are organized, validly existing and in good standing under the laws of their respective jurisdictions its jurisdiction of organizationincorporation, are and has full corporate power and authority to carry on its business as it is currently being and is proposed to be conducted and to own, lease and operate its properties, and is duly qualified and in good standing as a foreign corporation registered to do business and are in good standing in each jurisdiction in which their respective the nature of its business or its ownership or lease leasing of property requires or the conduct of their respective businesses requires will require such qualification qualification, except where the failure to be so qualifyqualified would not be reasonably likely to have a material adverse effect on the condition (financial or other), business, property, prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). All outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are not subject to preemptive or similar rights. All of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), other than pursuant to the Credit Agreement. Each of the Issuers has all necessary corporate power and authority to enter into and perform its obligations under the Operative Documents and, in the case of the Company, to issue, sell and deliver the Series A Notes to the Initial Purchasers.
(c) Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws or in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument material to the conduct of the business of the Company and its subsidiaries to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound.
(d) The execution, delivery and performance of the Operative Documents by each of the Issuers, compliance by each of the Issuers with the provisions of the Operative Documents and the Series A Notes, and the consummation of the transactions contemplated by the Operative Documents and the Series A Notes do not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or result in the imposition of a lien or encumbrance on any properties of the Company or any of its subsidiaries or an acceleration of indebtedness pursuant to, (i) the charter or bylaws of the Company or any of its subsidiaries, (ii) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, or (iii) any law or administrative regulation applicable to the Company or any of its subsidiaries or any of their respective assets or properties, or any judgment, order or decree of any court or governmental agency or authority entered in any proceeding to which the Company or any of its subsidiaries was or is now a party or to which the Company or any of its subsidiaries or their respective properties may be subject, except, in the case of clauses (ii) and (iii), for any such conflict, breach, default or imposition of a lien that would not be reasonably likely to have a Material Adverse Effect. No consent, approval, authorization or order of, or filing or registration with, any regulatory body, administrative agency, or other governmental agency (except as securities or Blue Sky laws of the various states may require) that has not been made or obtained is required for the execution, delivery and performance of the Operative Documents and the valid issuance and sale of the Series A Notes. No consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents and the Offering Documents, except (i) such consents and waivers as have been or, prior to the Closing Date, will be obtained and (ii) where the failure to obtain such consents or waivers would not reasonably be likely to have a Material Adverse Effect.
(e) This Agreement has been duly authorized and validly executed and delivered by each of the Issuers and (assuming the due execution and delivery thereof by the Initial Purchasers) is a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution.
(f) Each of the Issuers has duly authorized the Indenture, and when each of the Issuers has duly executed and delivered it (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity).
(g) The Company has duly authorized the Series A Notes and, when issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, the Series A Notes will conform to the description thereof in the Offering Circular, and will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity).
(h) Each of the Guarantors has duly authorized its Guarantee to be endorsed on the Series A Notes and, when executed and delivered in accordance with the terms of the Indenture and when the Series A Notes have been issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, the Guarantees will conform to the description thereof in the Offering Circular, and will be the legally valid and binding obligations of each of the Guarantors, enforceable against each of them in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity).
(i) The Company has duly authorized the Series B Notes.
(j) Each of the Guarantors has duly authorized its Guarantee of the Series B Notes.
(k) Each of the Issuers has duly authorized the Registration Rights Agreement, and when each of the Issuers has executed and delivered it (assuming the due execution and delivery thereof by the Initial Purchasers), the Registration Rights Agreement will be a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution.
(l) There is (i) no action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to the knowledge of any Issuer, threatened or contemplated to which the Company or any of its subsidiaries is or may be a party or to which the business or property of the Company or any of its subsidiaries is or may be subject, (ii) no statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency or, to the knowledge of any Issuer, proposed by any governmental body and (iii) no injunction, restraining order or order of any nature issued by a federal or state court of competent jurisdiction to which the Company or any of its subsidiaries is or may be subject that, in the case of clauses (i), (ii) and (iii) above, (A) is required to be disclosed in the Offering Circular and that is not so disclosed, (B) would be reasonably likely to have a Material Adverse Effect, (C) would interfere with or adversely affect the issuance of the Series A Notes or the consummation of the Transactions or (D) in any manner draw into question the validity of the Operative Documents or the Series A Notes.
(m) No holder of any security of any Issuer has any right to require registration of any security of any Issuer, other than pursuant to the Stockholders Agreement dated as of August 16, 1995 (the "STOCKHOLDERS AGREEMENT") and the Registration Rights Agreement.
(n) Neither the Company nor any of its subsidiaries is involved in any material labor dispute nor, to the knowledge of any Issuer, is any material dispute threatened which, if such dispute were to occur, would be reasonably likely to have a Material Adverse Effect.
(o) Neither the Company nor any of its subsidiaries has violated any safety or similar law applicable to its business, nor any federal or state law relating to discrimination in the hiring, promotion or pay of employees nor any applicable federal or state wages and hours laws, nor any provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations promulgated thereunder, except for such instances of noncompliance that, either singly or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.
(p) Except as set forth in the Offering Circular, the Company and each of its subsidiaries is in compliance with all applicable existing federal, state, local and foreign laws and regulations (collectively, "ENVIRONMENTAL LAWS") relating to protection of human health or the environment or imposing liability or standards of conduct concerning any Hazardous Material (as defined below), except for such instances of noncompliance that, either singly or in the aggregate, would not be reasonably likely to have a Material Adverse Effect. The term "HAZARDOUS MATERIAL" means (i) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (ii) any "hazardous waste" as defined by the Resource Conservation and Recovery Act, as amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated biphenyl and (v) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law. Except as set forth in the Offering Circular, there is, to the knowledge of any Issuer, no alleged or potential liability (including, without limitation, alleged or potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) of the Company or any of its subsidiaries arising out of, based on, or resulting from (1) the presence or release into the environment of any Hazardous Material at any location currently or previously owned by the Company or any of its subsidiaries or at any location currently or previously used or leased by the Company or any of its subsidiaries, or (2) any violation or alleged violation of any Environmental Law, except, in each case, with respect to clause (1) and (2), alleged or potential liabilities that, singly or in the aggregate, would not be reasonably likely to have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter to, and agree with, the several Initial Purchasers that:
(a) Each preliminary prospectus included as part As of their respective dates, the registration statement as originally filed or as part of Preliminary Offering Memorandum and the Offering Memorandum do not contain and any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has thereto will not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as the representations and warranties in this subsection shall not apply to information relating to an Underwriter contained statements in or omitted omissions from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by Preliminary Offering Memorandum or on behalf of such Underwriter specifically for inclusion therein.
Offering Memorandum (cor any supplement or amendment thereto) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative Initial Purchasers expressly for use in the Preliminary Offering Memorandum or Offering Memorandum. The Issuers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page and the first and third paragraphs and the fourth and fifth sentences of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only written information furnished to the Company by the Initial Purchasers for use in the Preliminary Offering Memorandum or Offering Memo- randum (or any Issuer Free Writing Prospectusamendment or supplement thereto) and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) When the Notes are issued and delivered pursuant to this Agreement, the Issuers will have no securities outstanding which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(c) None of the Issuers or the Manager (as defined in paragraph (e) below) or any affiliate of any of them (as defined in Rule 501(b) under the Act) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Act) which is subject to integration with the sale of the Notes in a manner that would require the registration of the Notes under the Act.
(d) The Company was at the time of initial filing None of the Registration Statement and at Issuers or the time Manager or any person acting on their behalf has engaged, in connection with the offering of the most recent amendment thereto for purposes Notes, in any form of complying with general solicitation or general advertising (as those terms are used within the meaning of Regulation D under the Act); it has not solicited offers for, or offered or sold, such Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 10(a)(34(2) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documentsonly entity in which the Issuers have an equity or other ownership interest is Trading Cove Associates, at a Connecticut general partnership (the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, "Manager"). The Issuers and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries Manager have been duly formed and are organized, each of the Issuers is validly existing and in good standing under the laws of their respective jurisdictions its jurisdiction of organizationorganization and each of the Issuers and the Manager has full power and authority to carry on its business as it is currently being conducted (and, in the case of the Issuers, to authorize the offering of the Notes and to issue, sell and deliver the Notes) and to own, lease and operate its properties. Each of the Issuers and the Manager are duly qualified to do business and are in good standing as a foreign corporation or other entity in each jurisdiction in which their respective where the nature of its business or its ownership or lease leasing of property or the conduct of their respective businesses requires such qualification except where the failure to be so qualifyqualified or in good standing does not and would not (x) individually or in the aggregate, have a material adverse effect on the properties, results of operations, condition (financial or otherwise), affairs or prospects of the Issuers and the Manager, taken as a whole, (y) interfere with or adversely affect the issuance or marketability of the Notes pursuant hereto or (z) in any manner draw into question the validity of this Agreement, the Indenture, the Related Agreements, the Registration Rights Agreement or the Collateral Agreements (any of the events set forth in clauses (x), (y) or (z), a "Material Adverse Effect)".
(f) The Company directly owns a 45% economic and 50% voting partnership interest in the Manager, Leisure Resorts Technology, Inc. owns a 5% non-voting beneficial interest in the Manager and Sun Cove, Ltd. owns the remaining 50% partnership interest in the Manager. The Company directly owns all the issued and outstanding capital stock of Finance. Except as described in the Offering Memorandum in connection with the buy/sell option, the Company's partnership interest in the Manager and shares of capital stock in Finance are owned by the Company free and clear of any security interest, mortgage, pledge, claim, lien or encumbrance (each, a "Lien"). Except as described in the Offering Memorandum in connection with the buy/sell option, there are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale, or Liens related to or entitling any person to purchase or otherwise to acquire the Company's partnership interest in the Manager or shares of capital stock in Finance.
(g) All the issued and outstanding shares of capital stock of Finance have been duly authorized and validly issued and are fully paid, nonassessable and not subject to any preemptive or similar rights.
(h) The Indenture has been duly authorized by all necessary corporate action on the part of the Issuers and, when executed and delivered by the Issuers in accordance with its terms (assuming the due execution and delivery thereof by the Trustee), will be the legal, valid and binding agreement of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).
(i) The Notes have been duly authorized by the Issuers and, on the Closing Date, the Indenture and the Notes will have been duly executed by each of the Issuers and will conform in all material respects to the descriptions thereof in the Offering Memorandum. When the Notes are issued, executed and authenticated in accordance with the Indenture and paid for in accordance with the terms of this Agreement, the Notes will be the legal, valid and binding obligations of each of the Issuers, enforceable against the Issuers in accordance with their terms and entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).
(j) None of the Issuers or the Manager is (i) in violation of or in default in the performance of (A) any of their respective certificate of incorporation, certificate of formation, bylaws, operating agreement or partnership agreement or (B) any bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other material contract, lease, license, permit, franchise or other instrument to which either of the Issuers or the Manager is a party or by which it or any of them is bound, or to which any of the property or assets of either of the Issuers or the Manager is subject or (ii) in violation of any judgment, order or decree of any court or governmental agency or authority entered in any proceeding to which either of the Issuers or the Manager is a party or by which any of them is bound or to which any of the property or assets of either of the Issuers or the Manager is subject or any applicable Federal, tribal, state or local law, rule, administrative regulation or ordinance applicable to Issuers, the Manager or any of their respective property except in the case of (i)(B), and (ii), for such violations or defaults that would not, singly or in the aggregate, would not have a Material Adverse Effect.
(k) This Agreement and the registration rights agreement of even date herewith relating to the Notes (the "Registration Rights Agreement") have been duly and validly authorized, executed and delivered by the Issuers and constitute legal, valid and binding agreements of each of the Issuers, enforceable against each of the Issuers in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and except as rights to indemnity and contribution hereunder and thereunder may be limited by state or Federal securities laws or the public policy underlying such laws.
(l) The Collateral Agreements have been duly and validly authorized, executed and delivered by the Company, and have all power constitute legal, valid and authority necessary binding agreements of the Company, enforceable against the Company, subject to own applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws now or hold their respective properties hereafter in effect relating to creditors' rights generally and to conduct general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).
(m) The Amended and Restated Partnership Agreement of Trading Cove Associates, as amended by the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on First Amendment thereto dated October 22, 1996 (the financial condition"Partnership Agreement"), results of operationsthe Note Purchase Agreement, business or prospects of dated October 19, 1996, among the Company Company, Sun International Hotels Limited and its subsidiaries taken Trading Cove Associates (the "Note Purchase Agreement") and the Omnibus Financing Agreement among the Company, Sun International Hotels Limited and Trading Cove Associates, as a whole.amended by the First Amendment thereto dated October 19, 1996 (the "Omnibus Agreement", and together with the Partnership Agreement and the Note Purchase Agreement, the "Related
Appears in 1 contract
Representations and Warranties of the Issuers. The Each of the Issuers, jointly as of the date of each Terms Agreement referred to in Section 3, severally and severallyjointly, represent represents and warrant to warrants to, and agrees with, each Underwriter that:
(a) Each preliminary A registration statement (No. 333-71111), including a prospectus, relating to the Registered Securities has been filed with the Securities and Exchange Commission ("Commission") and has become effective. Such registration statement, as amended at the time of any Terms Agreement referred to in Section 3, is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as part supplemented as contemplated by Section 3 to reflect the terms of the registration statement Offered Securities and the terms of offering thereof, as originally first filed or as part of any amendment or supplement thereto, or filed with the Commission after the date and time this Agreement is executed and delivered by the parties hereto pursuant to and in accordance with Rule 424 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended ("Act"), including all material incorporated by reference therein, is hereinafter referred to as the "Prospectus." No document has been or will be prepared or distributed in reliance on Rule 434 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at On the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light effective date of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information registration statement relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of Registered Securities, such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied registration statement conformed in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) requirements of the Act, a “well-known seasoned issuer” the Trust Indenture Act of 1939, as amended (as defined in Rule 405 under "Trust Indenture Act") and the Act) eligible to use Form S-3 for the offering rules and regulations of the Securities, including not having been an “ineligible issuer” Commission (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act"Rules and Regulations") and was filed did not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; , and on the date of each Terms Agreement referred to in Section 3, the Registration Statement and the Prospectus (and any supplements or amendments thereto) will at all such times comply conform in all material respects with to the provisions requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will not at any such time contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made, except that the foregoing does not misleading; provided, however, that no representation or warranty is made as and shall not apply to information relating to an Underwriter contained statements in or omitted omissions from the Registration Statement or the Prospectus in reliance any of such documents based upon and in conformity with written information furnished to the Issuers by or on behalf of such any Underwriter through the Representatives, if any, specifically for inclusion use therein.
(c) Each of the Issuers has been duly incorporated or formed, as the case may be, and is an existing corporation or limited partnership, as the case may be, in good standing under the laws of the State of Delaware, with power and authority (corporate or partnership, as the case may be) to own its properties and conduct its business as described in the Prospectus; and each of the Issuers is duly qualified to do business as a foreign corporation or limited partnership, as the case may be, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing, considering all such cases in the aggregate, would not reasonably be expected to have a material adverse effect on the business, properties, condition (financial or otherwise) or results of operations of the Issuers and all of their subsidiaries and affiliates taken as a whole (a "Material Adverse Effect").
(d) Ferrellgas Partners is the sole limited partner of Ferrellgas, L.P., a Delaware limited partnership (the "Operating Partnership"), with a limited partner interest of 98.9899%; such limited partner interest has been duly authorized by the Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership dated as of October 14, 1998, as amended, and was validly issued and is fully paid and non-assessable (except as non-assessability may be affected by certain provisions of the Delaware Revised Uniform Limited Partnership Act); Ferrellgas Partners owns such limited partner interest in the Operating Partnership free from liens and encumbrances (except for such liens and encumbrances as are not, individually or in the aggregate, material to the ownership, use or value thereof or as disclosed in the Registration Statement and the Prospectus).
(e) The Incorporated Documents, at Indenture has been duly authorized and has been duly qualified under the time they were filed with Trust Indenture Act; the Commission complied, or, Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the extent Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such documents were subsequently amended prior Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the date hereof, at description thereof contained in the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amendedProspectus, and the published rules Indenture and regulations such Offered Securities will constitute valid and legally binding obligations of each of the Commission thereunder Issuers (collectivelyassuming in the case of the Indenture, the “Exchange Act”due authorization, execution and delivery thereof by the Trustee), as applicableenforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and such documents do not on other laws now or hereafter in effect relating to or affecting creditors' rights generally, (ii) limitations under Federal or state securities laws with respect to the date hereof, rights of indemnification or contribution thereunder and will not at the Closing Date, contain an untrue statement (iii) general principles of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, 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 misleadingequity.
(f) Except as disclosed in the Prospectus, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance and sale of the Offered Securities by the Issuers, except such (i) as have been obtained, (ii) to be made under the Act and the Trust Indenture Act, (iii) as may be required under state securities laws, or (iv) as the failure to obtain or make would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Issuers to execute, deliver and perform the transactions contemplated by the Terms Agreement in accordance with its terms.
(g) The execution, delivery and performance of the Indenture and the Terms Agreement (including the provisions of this Agreement) and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not (i) conflict with or result in a violation of any of the provisions of the certificate of incorporation, certificate or agreement of limited partnership, articles of formation or by-laws, as the case may be, of the Issuers, (ii) conflict with or violate in any material respect any law, rule, regulation, order, judgment or decree applicable to any of the Issuers or their subsidiaries or by which any property or asset of any of the Issuers or their subsidiaries is or may be bound or (iii) result in a breach of any of the material terms or provisions of, or constitute a default (with or without due notice and/or lapse of time) under, any loan or credit agreement, indenture, mortgage, note or other agreement or instrument to which any of the Issuers or their subsidiaries is a party or by which any of them or any of their respective properties or assets is or may be bound, except, in the case of clauses (ii) or (iii) where such conflict, violation, breach or default will not prevent the consummation of the transactions contemplated herein or would not reasonably be expected to have a Material Adverse Effect.
(h) Each of the Issuers has full power and authority (corporate or partnership, as the case may be) to authorize, issue and sell the Offered Securities as contemplated by the Terms Agreement (including the provisions of this Agreement). The Terms Agreement (including the provisions of this Agreement) has been duly authorized, executed and delivered by each of the Issuers.
(i) Except as described in the Prospectus, each of the Issuers and their subsidiaries have good and valid title to all real properties and good title to all personal properties and assets described in the Prospectus as being owned by them, in each case free from liens, claims, security interests or other encumbrances that would reasonably be expected to materially affect the value thereof or materially interfere with the use made or to be made thereof by them, taken as a whole, including liens, claims, security interests and other encumbrances pursuant to mortgage and/or security agreements given as security for certain non-compete agreements with the prior owners of certain businesses previously acquired by the Issuers and their subsidiaries; and except as disclosed in the Prospectus, each of the Issuers and their subsidiaries hold any leased real property or buildings under valid and enforceable leases with no exceptions that would reasonably be expected to materially interfere with the use made by them, taken as a whole.
(j) Except as described in the Prospectus, each of the Issuers and their subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except for those which the failure to obtain, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Issuers or any of their subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(k) No labor dispute with the employees of either of the Issuers or any subsidiary exists or, to the knowledge of either of the Issuers, is imminent that would reasonably be expected to have a Material Adverse Effect.
(l) Each of the Issuers and their subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Issuers or any of their subsidiaries, would individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(m) Except as disclosed in the Prospectus, neither of the Issuers nor any of their subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated such that the clean-up or remediation is required by applicable environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and neither of the Issuers is aware of any pending investigation which would reasonably be expected to lead to such a claim.
(n) Except as disclosed in the Prospectus, there are no actions, suits or proceedings pending, or to the knowledge of the Issuers, threatened, against or affecting either of the Issuers, any of their subsidiaries or any of their respective properties that, if determined adversely to the Issuers or any of their subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuers to perform their obligations under the Indenture or the Terms Agreement (including the provisions of this Agreement).
(o) The financial statements (including the related notes and supporting schedules) included in the Registration Statement, the Time of Sale Information Statement and the Prospectus present fairly in all material respects the consolidated financial position and position, results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involvedindicated, except for changes as disclosed therein; and any schedules included in accounting principles described the Registration Statement present fairly in all material respects the information required to be stated therein.
(gp) PricewaterhouseCoopers LLPExcept as disclosed in the Prospectus, who has reported on since the date of the latest audited financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or included in the aggregateProspectus, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any there has been no material adverse effect on change, nor any development or event involving a prospective material adverse change, in the condition (financial conditionor other), business, properties or results of operations, business or prospects operations of the Company Ferrellgas Partners and its subsidiaries taken as a whole, and, except as disclosed in or contemplated by the Prospectus or for the regular quarterly distributions on the common units, senior units and general partner units of Ferrellgas Partners and the regular quarterly distributions on the general partner and limited partner interests of the Operating Partnership, there has been no dividend or distribution of any kind declared, paid or made by either of the Issuers on any class of their equity interests.
(q) Each of the Issuers is subject to the reporting requirements of either Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and files reports with the Commission on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.
(r) Each of the Issuers is, and axxxx giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus, will be exempt from regulation as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, Issuers represent and warrant to and agrees with each of the Underwriters and the Independent Underwriter that:
(a) Each preliminary prospectus included as part of the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement as originally to be filed or as part to register the offer and sale of any amendment or supplement thereto, or filed Securities pursuant to Rule 424 462(b) under the Act, complied when so will be filed in all material respects with the provisions Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date hereof; no stop order of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the knowledge of the Issuers, are contemplated by the Commission;
(b) The Time the Registration Statement complied when it became effective, complies as of Sale Information the date hereof and, as amended or supplemented, at the Time time of Sale purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3 in connection with the offering and sale of the Securities as contemplated hereby have been satisfied; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act); the Issuers have not received from the Commission a notice pursuant to Rule 401(g)(2), of objection to the use of the automatic shelf registration statement form; as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, and as of each time, if any, an “offer by or on behalf of” (within the meaning of Rule 163 under the Act) the Issuers was made prior to the initial filing of the Registration Statement, the Company is and was a “well-known seasoned issuer” as defined in Rule 405 under the Act; the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5) under the Act); the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, when considered together with the Closing Date Current Reports on Form 8-K filed on January 11, 2007 and January 25, 2007 and incorporated by reference therein, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Basic Prospectus complied or will notcomply, contain as of its date and the date it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, at the time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Basic Prospectus and the date such Basic Prospectus was filed with the Commission and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Basic Prospectus, as then amended or supplemented, when considered together with the Current Reports on Form 8-K filed on January 11, 2007 and January 25, 2007 and incorporated by reference therein, together with the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the earlier of the date of the Prospectus Supplement and the date the Prospectus Supplement is filed with the Commission and ends at the later of the time of purchase and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities did or will any Prospectus Supplement or the Prospectus, as then amended or supplemented, when considered together with the Current Reports on Form 8-K filed on January 11, 2007 and January 25, 2007 and incorporated by reference therein, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuers make no representation or warranty is made as in this Section 3(b) with respect to information relating to an Underwriter any statement contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or omitted from the Time of Sale Information any Permitted Free Writing Prospectus in reliance upon and in conformity with written information concerning an Underwriter and furnished to the Issuers in writing by or on behalf of such Underwriter specifically through you to the Issuers expressly for inclusion therein.
(c) The Company (including its agents and representativesuse in the Registration Statement, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Pre-Pricing Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting the Time of Sale Information and (v) any electronic road show Prospectus or other written communications, in each case approved in writing in advance by the Representative. Each such Issuer Permitted Free Writing Prospectus (it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 10); each Incorporated Document, at the time such document was filed, or will be filed, with the Commission or at the time such document became or becomes effective, as applicable, complied or will comply, in all material respects respects, with the Act, has been requirements of the Exchange Act and did not or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any as applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(c) prior to the execution of this Agreement, the Issuers have not, directly or indirectly, offered or sold any Securities by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Pre-Pricing Prospectuses and the Permitted Free Writing Prospectuses, if any; provided that the Company makes no representation and warranty with respect Issuers have not, directly or indirectly, prepared, used or referred to any statements or omissions made in each such Issuer Permitted Free Writing Prospectus except in reliance upon compliance with Rule 163 or with Rules 164 and in conformity with information relating to any Underwriter furnished to 433 under the Company in writing by Act; assuming that such Underwriter through the Representative expressly for use in any Issuer Permitted Free Writing Prospectus.
Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c) and (d) The Company was at of Rule 164); the time conditions set forth in one or more of initial filing subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the registration statement relating to the offering of the Registration Statement and at Securities contemplated hereby, as initially filed with the time Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the most recent amendment thereto for purposes Act, satisfies the requirements of complying with Section 10(a)(3) 10 of the Act; neither the Issuers nor the Underwriters are disqualified, a by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Securities, “well-known seasoned issuerfree writing prospectuses” (as defined in Rule 405 under the Act) eligible pursuant to use Form S-3 for Rules 164 and 433 under the offering of Act; the Securities, including Company is not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Securities contemplated by the Registration Statement, without taking into account any such time or date. The Registration Statement determination by the Commission pursuant to Rule 405 under the Act that it is not necessary under the circumstances that the Company be considered an “automatic shelf registration statementineligible issuer”; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 405 433 under the Act) and was filed not earlier than related to the date that offering of the Securities contemplated hereby is three years solely the property of the Issuers;
(d) in accordance with Rule 2710(b)(7) of the NASD, the Securities have been registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different)October 21, including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.1992;
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to as of the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectivelythis Agreement, the “Exchange Act”), Company has an authorized and outstanding capitalization as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) set forth in the Registration Statement, the Time of Sale Information Pre-Pricing Prospectuses and the Prospectus present fairly in all material respects the consolidated financial position column entitled “Actual” under the caption “Capitalization” (and results of operations any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the entities purported to be shown therebytime of purchase, at assuming the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements closing of the CompanyConcurrent Offering concurrently therewith, is a registered independent public accounting firm with respect to the Company shall have an authorized and its subsidiaries outstanding capitalization as required by set forth in the Act andRegistration Statement and the Prospectus in the column entitled “Pro Forma” under the caption “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each case, to the Company’s knowledgeissuance of shares of Common Stock upon exercise of stock options and warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), is each Pre-Pricing Prospectus and the Prospectus and the grant of options under existing stock option plans described in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus); all of the issued and outstanding shares of capital stock, including the Common Stock and the other shares of capital stock contemplated to be issued as part of the Transactions, of the Company have been (or will be upon the consummation of the Transactions) duly authorized and validly issued and are fully paid and non-assessable, have been (or will be upon the consummation of the Transactions) issued in compliance with all applicable securities laws and were not issued in violation of the auditor independence requirements any preemptive right, resale right, right of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.first refusal or similar right;
(hf) The the Company and each of its subsidiaries have has been duly formed incorporated and are is validly existing as a corporation in good standing under the laws of their respective jurisdictions the State of organizationMissouri, are with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, to execute and deliver this Agreement and the Securities and to issue, sell and deliver the Securities as contemplated by this Agreement, and to consummate the Transactions, the Guarantor Mergers and the Guarantor Successions and enter into the agreements and instruments related thereto to which the Company is a party, including the acquisition agreement relating to the Acquisition (the “Acquisition Agreement”) and the Credit Agreement;
(g) the Company is duly qualified to do business as a foreign corporation and are is in good standing in each jurisdiction in which their respective where the ownership or lease leasing of property its properties or the conduct of their respective businesses its business requires such qualification qualification, except where the failure to be so qualifyqualified and in good standing would not, singly individually or in the aggregate, would not (i) have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the business, properties, financial condition, results of operations, business operations or prospects of the Company and its subsidiaries the Subsidiaries (as defined below) taken as a whole., (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement (including the Transactions, the Guarantor Mergers and the Guarantor Successions), the Indenture or the Notes or (iii) result in the delisting of shares of Common Stock from the NYSE (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (i), (ii) and (iii) being herein referred to as a “Material Adverse Effect”);
(h) the Company has no “subsidiaries” (as defined under the Act) other than the entities listed on Exhibit D hereto, which list includes the entities comprising the Acquired Business (the “Acquired Business Subsidiaries”) and the existing subsidiaries of the Company (the “Historic Subsidiaries” and, together with the Acquired Business Subsidiaries, the “Subsidiaries”) but excludes Rockwell Automation Asia Pacific Limited, Reliance Electric Limited (a company organized under the laws of Japan) and
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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)Securities, (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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting the Time of Sale Information and (v) any electronic road show roadshow or other written communications, in each case approved in writing in advance by the RepresentativeRepresentatives. Each communication by the Company or its agents and representatives referred to in clauses (iv) and (v) is referred to herein as an “Issuer Free Writing Prospectus.” Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, Ernst & Young LLP is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended, and the rules and regulations adopted pursuant theretopromulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”).
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly Each of the Issuers hereby represents and severally, represent and warrant warrants to each Underwriter thatHolder, and acknowledges that each Holder is relying on such representations and warranties, as follows:
(a) Each preliminary prospectus included as part Such Issuer is duly organized, validly existing and in good standing under the laws of the State of Delaware and each of its subsidiaries has been duly incorporated or formed, as applicable, and is validly existing, in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable.
(b) Such Issuer has the legal capacity, power and authority to enter into and perform all of its obligations under this Agreement. This Agreement has been duly executed and delivered by the Issuers, and upon its execution and delivery by Holders, will constitute a legal, valid and binding obligation of the Issuers, enforceable against the Issuers in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
(c) The execution, delivery and performance by the Issuers of this Agreement and the consummation of the Transactions, including commencement of the Exchange Offer by the Partnership Group and the Consummation, do not and will not conflict with, require a consent, waiver or approval under, or result in a breach of, default or violation under (with or without due notice, lapse of time, or both), any of (A) the certificate of incorporation, certificate of formation, bylaws, limited liability company agreement, or other organizational documents of such member of the Partnership Group, (B) any contract, agreement, commitment, judgment, decree, order or other obligation (written or oral) to which such member of the Partnership Group is a party or by which such member’s or any of its subsidiaries’ assets may be bound, or (C) any law, statute, order, rule or regulation applicable to such member of the Partnership Group or any of their respective assets, except in the case of each of clauses (B) and (C) above, as otherwise disclosed in the Offering Memorandum or as would not reasonably be expected to have a Material Adverse Effect.
(d) The execution, delivery and performance by the Issuers of this Agreement and the consummation of the Transactions, including commencement of the Exchange Offer by the Partnership Group and the Consummation, do not and will not require any registration statement as originally or filing with, the consent or approval of, notice to, or any other action with respect to (with or without due notice, lapse of time, or both), any Governmental Authority, other than (i) Current Reports on Form 8-K filed or furnished by the Partnership with respect to the Exchange Offer and the Consent Solicitation, (ii) such as part have been made or obtained and are in full force and effect, (iii) filings of Uniform Commercial Code financing statements and other registrations or filings in connection with the perfection of security interests granted pursuant to any amendment collateral documents securing the New First Lien Notes or supplement otherwise relating to the Transactions, (iv) as described in the Offering Memorandum and Consent Solicitation Statement and (v) such registrations, filings, consents, approvals, notices or other actions that, if not obtained or made, would not reasonably be expected to have a Material Adverse Effect.
(e) The New First Lien Notes will (A) qualify for and be issued pursuant to and in compliance with an applicable exemption from registration under the Securities Act, and (B) be issued and granted in compliance with all applicable securities laws and other applicable laws. The Exchange Offer, including the Offering Memorandum, will comply in all material respects with all applicable securities laws and other applicable laws, including all applicable rules of the Commission.
(f) The New First Lien Notes have been duly authorized by the Issuers and each other member of the Partnership Group party to the New First Lien Notes Indenture and, when issued in accordance with the provisions of the New First Lien Notes Indenture pursuant to the Exchange Offer against delivery of the 2022 Notes in accordance with the terms of this Agreement, the New First Lien Notes Indenture will constitute valid and legally binding obligations of the Issuers and each other member of the Partnership Group party thereto, enforceable in accordance with their terms, except that such enforcement may be subject to the Enforceability Exceptions.
(g) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Partnership, threatened, against the Partnership Group that would reasonably be expected to impede the consummation of the Transactions.
(h) The Partnership Group has filed pursuant or furnished, as applicable, all forms, filings, registrations, submissions, statements, certifications, reports and documents required to Rule 424 be filed or furnished by it with the Commission under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the Securities Act (the SEC filings through the date hereof, including any amendments thereto, the “Partnership Reports”). As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), each of the Partnership Reports complied when so filed in all material respects with the provisions applicable requirements of the Exchange Act and the Securities Act, and any rules and regulations promulgated thereunder applicable to the Partnership Reports. The Commission has As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the Partnership Reports did not issued contain any order preventing untrue statement of a material fact or suspending omit to state a material fact required to be stated therein or necessary to make the use statements made therein, in light of any preliminary prospectusthe circumstances in which they were made, not misleading.
(bi) The Time of Sale Information at the Time of Sale did Offering Memorandum and any amendments or supplements thereto do not and will not, as of the commencement, expiration and at settlement of the Closing Date will notExchange Offer, 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; providedmisleading (except insofar as such statement or omission was based on, however, that no representation or warranty is and made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written upon, information furnished to the Issuers by or on behalf of such Underwriter specifically any Holder for inclusion use therein).
(cj) The Company Partnership’s consolidated financial statements (including its agents and representativesincluding, other than in each case, any notes thereto) contained in the Underwriters in their capacity as such) has 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 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 Partnership Reports were prepared (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles in the United States of America (“GAAP”) applied on a consistent basis throughout the periods involvedindicated (except as may be indicated in the notes thereto or, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLPthe case of interim consolidated financial statements, who has reported on the where information and footnotes contained in such financial statements are not required under the rules of the CompanySEC to be in compliance with GAAP) and (ii) in compliance, is a registered independent public as of their respective dates of filing with the SEC, in all material respects with applicable accounting firm requirements with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the published rules and regulations adopted pursuant of the SEC with respect thereto.
(h) The Company , and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction case such consolidated financial statements fairly presented, in which their respective ownership or lease of property or all material respects, the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the consolidated financial conditionposition, results of operations, business or prospects changes in unitholder’s equity and cash flows of the Company Partnership and its subsidiaries taken as a wholeof the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments).
Appears in 1 contract
Samples: Support Agreement (Calumet Specialty Products Partners, L.P.)
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter to, and agree with, the several Purchasers that:
(a) Each A preliminary prospectus included offering circular and an offering circular relating to the Offered Securities to be offered by the Purchasers have been prepared by the Company. Such preliminary offering circular and offering circular, as part supplemented as of the registration statement as originally filed or as part date of this Agreement, together with any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, document 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at connection with the time of initial filing contemplated resale of the Registration Statement and at Offered Securities are hereinafter collectively referred to as the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date"Offering Document". The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at On the date of the Prospectus (if different), including at the date of any post-effective amendment or supplementthis Agreement, the Registration Statement will comply in all material respects with the provisions of the Act, and will Offering Document does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as . The preceding sentence does not apply to information relating to an Underwriter contained statements in or omitted omissions from the Registration Statement or the Prospectus in reliance Offering Document based upon and in conformity with written information furnished to the Issuers Company by or on behalf of such Underwriter Credit Suisse First Boston Corporation ("CSFBC") and the other Purchasers specifically for inclusion use therein.
(e) The Incorporated Documents, at it being understood and agreed that the time they were only such information is that described as such in Section 7(b). Except as disclosed in the Offering Document, on the date of this Agreement, the Company's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission complied(the "Commission") and all subsequent reports (collectively, or, to the extent such documents were subsequently amended prior to "Exchange Act Reports") which have been filed by the date hereof, at the time so amended complied, in all material respects Company with the requirements of the Act Commission or sent to stockholders pursuant to the Securities Exchange Act of 1934, as amended, and 1934 (the published rules and regulations of the Commission thereunder (collectively, the “"Exchange Act”), as applicable, and such documents ") do not on the date hereof, and will not at the Closing Date, contain an include any untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including . Such documents, when they were filed with the related notes and supporting schedules) in the Registration StatementCommission, the Time of Sale Information and the Prospectus present fairly conformed in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Exchange Act of 2002 and the rules and regulations adopted pursuant theretoof the Commission thereunder.
(hb) The Company and each of its subsidiaries have has been duly formed incorporated and are validly is an existing corporation in good standing under the laws of their respective jurisdictions the State of organizationDelaware, are with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and the Company is duly qualified to do business and are as a foreign corporation in good standing in each jurisdiction all other jurisdictions in which their respective its ownership or lease of property or the conduct of their respective businesses its business requires such qualification qualification, except where the failure so to so qualify, singly or in the aggregate, qualify would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects condition of the Company and its subsidiaries taken as a whole.
(c) Each Guarantor and each Significant Subsidiary (as defined in Regulation S-X under the Securities Act) of the Company has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and each Guarantor and each Significant Subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the financial condition of the Company and its subsidiaries taken as a whole; all of the issued and outstanding capital stock of each Guarantor and each Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Guarantor and each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(1) The Indenture has been duly authorized by each of the Issuers; (2) the Notes and the Guarantees have been duly authorized by the Company and each of the Guarantors, respectively; and (3) when the Notes and the Guarantees are delivered and paid for pursuant to this Agreement on the Closing Date (as defined below), (i) the Indenture will have been duly executed and delivered by each of the Issuers, (ii) the Notes and the Guarantees will have been duly executed, authenticated, issued and delivered by the Company and each of the Guarantors, respectively, and will conform to the description thereof contained in the Offering Document, (iii) the Indenture and the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and (iv) the Indenture and the Guarantees will constitute valid and binding obligations of each of the Guarantors enforceable against each Guarantor in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Company.
(f) The execution, delivery and performance of the Indenture and this Agreement by the Issuers, and the issuance and sale of the Offered Securities by the Issuers and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or the charter or by-laws of the Company or any such subsidiary, and the Issuers have full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.
(g) This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(h) Except as disclosed in the Offering Document, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Offering Document or the Exchange Act Documents, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them.
(i) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole.
(j) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent that might have a material adverse effect on the Company and its subsidiaries taken as a whole.
(k) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole.
(l) Except as disclosed in the Offering Document or the Exchange Act Documents, neither the Company nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole; and the Company is not aware of any pending investigation which might lead to such a claim.
(m) Except as disclosed in the Offering Document or the Exchange Act Documents, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture or this Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings are threatened or, to the Company's knowledge, contemplated.
(n) The financial statements included in the Offering Document and the Exchange Act Documents present fairly 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 such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis.
(o) Except as disclosed in the Offering Document, since the date of the latest audited financial statements incorporated by reference in the Offering Document there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(p) None of the Issuers is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the United States Investment Company Act of 1940 (the "Investment Company Act); and none of the Issuers is nor, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Document, will be an "investment company" as defined in the Investment Company Act.
(q) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(r) The offer and sale of the Offered Securities in the manner contemplated by this Agreement and the Offering Document will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and Regulation S thereunder and it is not necessary to qualify an indenture in respect of the Offered Securities under the United States Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(s) Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S under the Securities Act) the Offered Securities or any security of the same class or series as the Offered Securities or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of any directed selling efforts within the meaning of Rule 902(b) of Regulation S. The Company, its affiliates and any person acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S. The Company has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement.
(t) The Company is subject to Section 13 or 15(d) of the Exchange Act.
(u) There is no "substantial U.S. market interest" as defined in Rule 902(n) of Regulation S in the Company's debt securities.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each the Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue Registration statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such with respect to the Underwriter specifically for inclusion therein.
(ec) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended compliedamended, complied in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “"Exchange Act”"), as applicable, and such documents do not on the date hereof, hereof and will not at the on any Closing Date, Date contain an untrue statement of a material fact and do not on the date hereof, hereof and will not at the Time of Sale or on any Closing Date, Date 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.
(fd) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and Statement or the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(ge) PricewaterhouseCoopers Ernst & Young, LLP, who has have reported on the financial statements of the Company, is a registered are independent public accounting firm accountants with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant theretoAct.
(hf) [Reserved].
(g) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"), and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Each of the Issuers, jointly and severally, represent represents and warrant warrants to each Underwriter the Initial Purchaser that:
(a) Each preliminary prospectus included The Preliminary Offering Circular as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale its date did not, and at each of the Offering Circular and the Consent Solicitation Documents, as of its date does not and as of the Closing Date will not, and each supplement or amendment thereto as of its date will not, contain any untrue statement of a material fact or omit to state a any material fact (except, in the case of the Preliminary Offering Circular, for pricing terms and other financial terms intentionally left blank) necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) . The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 foregoing representation and warranty with respect made in this Section 6(a) shall not apply to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon on and in conformity with information relating to any Underwriter the Initial Purchaser furnished in writing to the Company Issuers by the Initial Purchaser specifically for inclusion in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) Preliminary Offering Circular or the Offering Circular. The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto parties hereto acknowledge that for purposes of complying this Agreement (including Section 8 hereof) the only information furnished in writing to the Issuers by the Initial Purchaser specifically for inclusion in the Preliminary Offering Circular or the Offering Circular is the information set forth (i) on the cover page of the Offering Circular with Section 10(a)(3respect to the price of the offering and (ii) under the caption "Plan of Distribution" in the Preliminary Offering Circular and the Offering Circular in the third paragraph (except for the third sentence), the sixth and seventh sentences of the fourth paragraph, and the fifth paragraph. No injunction or order has been issued that either (i) asserts that any of the Transactions is subject to the registration requirements of the Act, a “well-known seasoned issuer” or (as defined in Rule 405 under ii) would prevent or suspend the Act) eligible to use Form S-3 for the offering issuance or sale of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under Notes or the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date use of the Prospectus (if different)Preliminary Offering Circular, including at the date of Offering Circular, or any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments supplement thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.any
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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)Securities, (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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting the Time of Sale Information and (v) any electronic road show roadshow or other written communications, in each case approved in writing in advance by the RepresentativeRepresentatives. Each communication by the Company or its agents and representatives referred to in clauses (iv) and (v) is referred to herein as an “Issuer Free Writing Prospectus.” Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company through its fiscal year ended September 30, 2018, was a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act during all relevant periods and, to the Company’s knowledge, was not, during all relevant periods, in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”). Ernst & Young LLP is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and Act. Xxxxx & Xxxxx LLP has been serving as the rules and regulations adopted pursuant theretoCompany’s independent accountant since the quarter ended December 31, 2018.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.in
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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)Securities, (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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting the Time of Sale Information and (v) any electronic road show roadshow (including the Fixed Income Investor Marketing presentation dated November 2017 and made available to selected fixed income investors on and after November 28, 2017) or other written communications, in each case approved in writing in advance by the RepresentativeRepresentatives. Each communication by the Company or its agents and representatives referred to in clauses (iv) and (v) is referred to herein as an “Issuer Free Writing Prospectus.” Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the applicable Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly Each of the Issuers represents and severally, represent and warrant warrants to each Underwriter the Initial Purchasers that:
(a) Each preliminary prospectus included as part The Preliminary Offering Memorandum and Offering Memorandum with respect to the Notes have been prepared by the Issuers for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the registration statement as originally filed Preliminary Offering Memorandum or as part of the Offering Memorandum or any amendment or supplement thereto, or filed pursuant any order asserting that the transactions contemplated by this Agreement are subject to Rule 424 under the Act, complied when so filed in all material respects with the provisions registration requirements of the Act. The Commission Act has not been issued any order preventing and no proceeding for that purpose has commenced or suspending is pending or, to the use knowledge of any preliminary prospectusthe Issuers, is contemplated.
(b) The Time Preliminary Offering Memorandum and the Offering Memorandum as of Sale Information at the Time of Sale did their respective dates do not, and at the Offering Memorandum as of 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, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, 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.
(c) 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 Notes have been duly authorized by the Trust and the Subsidiary Guarantees have been authorized by each of the Guarantors and when the 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 to the Initial Purchasers against payment therefor in accordance with the terms hereof, the Notes will have been validly issued and 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 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 descriptions thereof in the Offering Memorandum.
(e) All the outstanding shares of capital stock or membership interests, as appropriate, of each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable.
(f) 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 incorporation 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, 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, and the Trust has all necessary power and authority, to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties; each Subsidiary is duly qualified and in good standing as a foreign corporation or limited liability company, as appropriate, authorized to do business in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have, individually or in the aggregate, a material adverse effect on the condition (financial or other), business, prospects, properties, net worth or results of operations of the Trust and the Subsidiaries taken as a whole (a "Material Adverse Effect"). The Trust is not required to register or qualify as a foreign entity in any jurisdiction.
(g) There are no legal or governmental proceedings pending or, to the knowledge of the Issuers, threatened, against the Trust or any of the Subsidiaries or to which the Trust or any of the Subsidiaries or to which any of their respective properties, is subject, 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 strike, job action or labor dispute with any group of employees, which, singly or in the aggregate would have a Material Adverse Effect and, to the Issuers' knowledge, no such action or dispute is threatened.
(h) None of the Trust or the Subsidiaries is (A) in violation of its certificate or articles of incorporation, or bylaws or other organizational documents, or of any law, ordinance, administrative or 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 Trust or any of the Subsidiaries or (B) in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any material agreement, indenture, 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, except to the extent any such violation or default, in the case of (A) or (B), as does not or will not have a Material Adverse Effect.
(i) None of the 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 Trust or the Subsidiaries of the transactions contemplated hereby 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 as may be required in connection with the registration under the Act of the Notes and the Subsidiary Guarantees and qualification of the Indentures under the 1939 Act in accordance with the Registration Rights Agreement and compliance with the securities or Blue Sky laws of various jurisdictions), or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation, bylaws or other organizational documents, of the Trust or any of the Subsidiaries, (B) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, 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 them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject.
(j) The accountants, Deloitte & Touche LLP, who have certified or shall certify the financial statements of the Trust and its consolidated subsidiaries included as part of the Offering Memorandum (including or any amendment or supplement thereto), 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 its consolidated subsidiaries included as part of the Offering Memorandum (or any amendment or supplement thereto), 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 and supporting schedules) included in the Registration StatementOffering Memorandum, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and position, results of operations and changes in trust principal or stockholders' equity, as the case may be, and cash flows of the entities purported to be shown therebyIssuers and Peguform, as appropriate, at the respective dates and or for the respective periods indicated, to which they apply; and such statements and related schedules and notes have been prepared in conformity accordance with generally accepted accounting principles consistently applied on a consistent basis throughout the periods involved, except for changes in accounting principles described as disclosed therein.
(g) PricewaterhouseCoopers LLP, who has reported on the . The pro forma financial statements of and other pro forma information included in the CompanyOffering Memorandum present fairly, is a registered independent public accounting firm 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 Company calculation of EBITDA and its subsidiaries as required by Adjusted EBITDA) and have been properly compiled on the Act 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 and statistical information and data included in the Offering Memorandum (and any amendment or supplement thereto) is accurately presented and, to the Company’s knowledgeextent such information and data is derived from the financial books and records of the Issuers or Peguform, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 prepared on a basis consistent with such financial statements and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.the
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, --------------------------------------------- jointly and severally, represent and warrant to each Underwriter and agree with the Initial Purchasers that:
(a) Each preliminary prospectus included The Final Memorandum, as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did not, its date and at the Closing Date (as defined in Section 3 hereof), does 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, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has 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 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 Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Exhibit A hereto as constituting 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 Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery 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 except that the Company makes no representation representations and warranty with respect warranties set forth in this Section 2(a) do not apply to any statements or omissions that are made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter the Initial Purchasers furnished to the Company in writing by such Underwriter through the Representative Initial Purchasers expressly for use in the Final Memorandum or any Issuer Free Writing Prospectus.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or datesupplement thereto. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) Final Memorandum and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement supplement thereto complied or will comply in all material respects with Rule 144A(d)(4) under the provisions of the Securities Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(eb) The Incorporated DocumentsEach of the Notes Issuers and the subsidiary set forth in Exhibit ------- A hereto (the "Subsidiary") has been and, at and as of the time they were filed with the Commission compliedEffective Time - will be, or, and to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements best knowledge of the Act or the Securities Exchange Act Notes Issuers, each of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Closing Date, contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) PricewaterhouseCoopers LLP, who has reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company Old Muzak and its subsidiaries as required by set forth in Exhibit B hereto (the Act "Muzak --------- Subsidiaries") has been and, to the Company’s knowledge, is not in violation at and as of the auditor independence requirements Effective Time, each of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been Muzak Subsidiaries will be, duly formed and are organized, validly existing and in good standing under the laws of their respective jurisdictions its jurisdiction of organizationorganization and has and, are at and as of the Effective Time, will have the power and authority to carry on its business as now being conducted and as contemplated to be conducted and to own and operate the properties and assets now owned and being operated by it or to be owned and operated by it in each case as described in the Final Memorandum (or, if the Final Memorandum is not in existence, the most recent Preliminary Memorandum). Each of the Notes Issuers and the Subsidiary is and, at and as of the Effective Time will be, and to the best knowledge of the Notes Issuers, each of Old Muzak and the Muzak Subsidiaries is, and at and as of the Effective Time, each of the Muzak Subsidiaries will be, duly qualified to do business as a foreign entity and are is or will be in good standing in each jurisdiction in which their respective ownership or lease such qualification is necessary under the applicable law as a result of property or the conduct of their respective businesses requires such qualification its business or the ownership of its properties, except where the failure to be so qualifyqualified would not, singly individually or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the general affairs, management, business, condition (financial conditionor other), properties, prospects or results of operationsoperations of the Issuers, business taken as a whole (any such event, a "Material Adverse Effect").
(c) As of the Closing Date (after giving effect to the Transactions and assuming that the Pending Capstar Acquisition has been consummated by such date): the Company will have the capitalization materially in conformance with that set forth in the Final Memorandum; and all of the outstanding capital stock of Finance Corp. will be owned and held by the Company.
(d) Except as described in the Final Memorandum: (i) all of the issued and outstanding shares or prospects capital stock of the Notes Issuers and the Subsidiary are and, at and as of the Effective Time, will be, and to the best knowledge of the Notes Issuers, as of the Closing Date, all of the issued and outstanding shares of capital stock of the Muzak Subsidiaries will be, duly authorized and validly issued and fully paid and non- assessable and none of them have been issued in violation of any preemptive or other right; (ii) all of the outstanding shares of capital stock of the Subsidary is owned, directly or indirectly, by the Company; (iii) except for options issued to management, as of the Effective Time, no options, warrants or other rights to purchase from the Company or any Guarantor, or agreements or other obligations of the Company or any Guarantor, 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 Guarantor, are outstanding and its subsidiaries taken no holder of securities of the Company or any Guarantor is entitled to have such securities registered under the Registration Statement; and (iv) as of the Effective Time, there will be no agreement, understanding or arrangement among the Company or any Guarantor, 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 Guarantor, or the election of directors of the Company or any Guarantor, or the governance of the Company's or any Guarantor's affairs, and, if any, such agreements, understandings and arrangements will not be breached or violated as a wholeresult of the execution and delivery of, or the consummation of the Transactions.
(e) Each of the Notes Issuers has and, at and as of the Effective Time, each of the Notes Issuers will have the required corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Notes, the Exchange Notes and the Private Exchange Notes. The Notes, the Exchange Notes, the Private Exchange Notes have each been duly and validly authorized by each of the Notes Issuers for issuance and, when executed by the Notes Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and, in the case of the Notes, when 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 Notes Issuers, entitled to the benefits of the Indenture and enforceable against the Notes Issuers 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 and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding with respect thereto may be brought (the "Enforceability Exceptions"); the Guarantees to be 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 the ACN Guarantors and, at and as of the Effective Time, will have each been duly and validly authorized by each of the Guarantors and, when the Notes are executed by the Notes Issuers 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, and when the Guarantees have been endorsed on the Notes in accordance with the terms of the Indenture, such Guarantees 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.
(f) Each of the Issuers has the requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly and validly authorized by the Notes Issuers and the ACN Guarantors and, at and as of the Effective Time, will have been duly and validly authorized by the Issuers, and meets the requirements for qualification under the Trust Indenture Act of 1939, as amended (the "TIA"), and, when executed and delivered by the Issuers (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.
(g) Each of the Issuers has the requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the
Appears in 1 contract
Representations and Warranties of the Issuers. The Issuers, jointly and severally, represent and warrant to each Underwriter that:
(a) Each preliminary prospectus included as part of the registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of any preliminary prospectus.
(b) The Time of Sale Information at the Time of Sale did will not, and at the each 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, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(c) The Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Underwriters an Underwriter in their its capacity as such) has not prepared, made, used, prepared, 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 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 clause (i) below and any Media Communication (as defined below) other than the version filed pursuant to Rule 433(f) under the Act), (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 Act or Rule 134 under the Act, (ii) any free writing prospectus permitted by Rule 433(f) under the Preliminary Prospectus, Act and satisfying the requirements of paragraph (i) thereof (a “Media Communication”) or (iii) the Prospectus, (iv) the documents listed on Exhibit A B hereto as constituting the Time of Sale Information and (v) any electronic road show or other written communications, in each case communication approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied will comply in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the all Time of Sale Information accompanying, or delivered prior to delivery of, of or filed prior to the first use of such Issuer Free Writing Prospectus, did will not, and at the each 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 provided, however, that the Company makes no representation and or warranty with respect is made as to information relating to an Underwriter contained in or omitted from any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company in writing Issuers by or on behalf of such Underwriter through specifically for inclusion. The Company will file each Media Communication, if any, pursuant to Rule 433(f) under the Representative expressly for use Act, within the time provided thereby, and each such Media Communication (including any correcting information permitted by Rule 433(f)), when filed, will not contain any untrue statement of a material fact or omit to state a material fact necessary in any Issuer Free Writing Prospectusorder to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) The Company was at the time of initial filing of the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Securities Act, a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405 under the Act) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 under the Act) and was filed not earlier than the date that is three years prior to the applicable Closing Date (as defined in Section 4). The Registration Statement has become effective and at the date of the Prospectus (if different), including at the date of any post-effective amendment or supplement, the Registration Statement will comply in all material respects with the provisions of the Act, and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus (and any supplements or amendments thereto) will at all such times comply in all material respects with the provisions of the Act and will not at any such time contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information relating to an Underwriter contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of such Underwriter specifically for inclusion therein.
(e) The Incorporated Documents, at the time they were filed with the Commission complied, or, to the extent such documents were subsequently amended prior to the date hereof, at the time so amended complied, in all material respects with the requirements of the Act or the Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and such documents do not on the date hereof, and will not at the Time of Sale or on any Closing Date, Date contain an untrue statement of a material fact and do not on the date hereof, and will not at the Time of Sale or on any Closing Date, Date omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The financial statements (including the related notes and supporting schedules) in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for changes in accounting principles described therein.
(g) Each of PricewaterhouseCoopers LLP and Ernst & Young LLP, who has have reported on the financial statements of the Company, is a registered independent public accounting firm with respect to the Company and its subsidiaries as required by the Act and, to the Company’s knowledge, is not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations adopted pursuant thereto.
(h) The Company and each of its subsidiaries have been duly formed and are validly existing in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. A “Material Adverse Effect” means any material adverse effect on the financial condition, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
