Representations and Warranties of the Issuers. Each of the Issuers, as of the date of each Terms Agreement referred to in Section 3, severally and jointly, represents and warrants to, and agrees with, each Underwriter that: (a) 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 supplemented as contemplated by Section 3 to reflect the terms of the Offered Securities and the terms of offering thereof, as first 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(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. (b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did not 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 will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will 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, in the light of the circumstances under which they were made, except that the foregoing does not and shall not apply to statements in or omissions from any of such documents based upon written information furnished to the Issuers by any Underwriter through the Representatives, if any, specifically for 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 Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Prospectus, and the Indenture and such Offered Securities will constitute valid and legally binding obligations of each of the Issuers (assuming in the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and 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 rights of indemnification or contribution thereunder and (iii) general principles of equity. (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 included in the Registration Statement and Prospectus present fairly in all material respects the financial 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 indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein. (p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus, 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 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, axx xfter 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. Each of the Issuers, The Issuers represent and warrant (i) on and as of the date any Remarketing Materials are first distributed in connection with the Remarketing (the “Commencement Date”), (ii) at the first time of sale of the Remarketed Notes during the applicable Three-Business Day Remarketing Period or Final Three-Business Day Remarketing Period and (iii) on and as of the Reset Effective Date (in each Terms Agreement referred to in Section 3case a “Representation Date”), severally and jointly, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement This Agreement has been duly authorized, executed and delivered by the Issuers, constitutes a valid and binding obligation of the Issuers, enforceable against the Issuers in accordance with its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and by the effect of general principles of equity (No. 333-71111regardless of whether enforceability is considered in a proceeding in equity or at law) and except that rights to indemnification hereunder may be limited by federal or state securities laws or public policy.
(b) Each of the representations and warranties of the Issuers as set forth in Section 1(a) (other than those made in subsection (vii)(with respect to equity securities), including a prospectus(xii), relating to the Registered Securities has been filed with the Securities and Exchange Commission ("Commission"xiv), (xv), (xvi), (xvii), (xviii), (xx) and has become effective. Such registration statement(xxvii)) of the Underwriting Agreement is true and correct as if made on each of the dates specified above; provided that for purposes of this Section 3(b), as amended at any reference in such sections of the time of any Terms Underwriting Agreement referred to in Section 3, is hereinafter referred to as (a) the "“Registration Statement," ” the “preliminary prospectus,” the “Prospectus,” the “Disclosure Package” and the prospectus included in “Transaction Documents” shall be deemed to refer to such Registration Statementterms as defined herein, as supplemented as contemplated by Section 3 (b) the “Closing Date” shall be deemed to reflect refer to the terms of Reset Effective Date, (c) the Offered Securities and “Securities” shall be deemed to refer to the terms of offering thereofRemarketed Notes, as first filed with (d) “Agreement” shall be deemed to refer to this Agreement, (e) “Underwriters” or “Representatives” shall be deemed to refer to the Commission after Remarketing Agent, (f) “Execution Time” shall be deemed to refer to the date and time this Agreement is executed and delivered by the parties hereto pursuant and (g) “Applicable Time” shall be deemed to and in accordance with Rule 424(b) ("Rule 424(b)") under refer to 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.
(b) On the effective date time of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did not 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 will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will 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, in the light of the circumstances under which they were made, except that the foregoing does not and shall not apply to statements in or omissions from any of such documents based upon written information furnished to the Issuers by any Underwriter through the Representatives, if any, specifically for 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 Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Prospectus, and the Indenture and such Offered Securities will constitute valid and legally binding obligations of each of the Issuers (assuming in the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and 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 rights of indemnification or contribution thereunder and (iii) general principles of equity.
(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 first sale of the Offered Securities by Remarketed Notes during 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 termsApplicable Remarketing Period.
(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 included in the Registration Statement and Prospectus present fairly in all material respects the financial 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 indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus, 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 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, axx xfter 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
Samples: Purchase Contract and Pledge Agreement (Assured Guaranty LTD)
Representations and Warranties of the Issuers. Each of The Company and the IssuersParent, as of the date of jointly and severally, represent and warrant to, and agree with, and each Terms Agreement referred Subsidiary Guarantor, solely with respect to in Section 3, severally and jointlyitself, represents and warrants to, and agrees with, each Underwriter with the Purchasers that:
(a) A registration statement (No. 333-71111), including a prospectus, preliminary offering circular and an offering circular relating to the Registered Offered Securities has to be offered by the Purchasers have been filed with prepared by the Securities and Exchange Commission Company. Such preliminary offering circular (the "CommissionPRELIMINARY OFFERING CIRCULAR") and has become effective. Such registration statementoffering circular (the "OFFERING CIRCULAR"), as amended at supplemented as of the time date of this Agreement, and any Terms Agreement referred to other document approved in Section 3, is writing by the Company for use in connection with the contemplated resale of the Offered Securities are hereinafter collectively referred to as the "Registration Statement,OFFERING DOCUMENT." and the prospectus included in such Registration Statement, as supplemented as contemplated by Section 3 to reflect the terms of the Offered Securities and the terms of offering thereof, as first filed with the Commission after On the date and time of this Agreement is executed and delivered by the parties hereto pursuant to and in accordance with Rule 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.
(b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the ActAgreement, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did Offering Document does not 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 therein therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Except as disclosed in the Offering Document, on the date of each Terms Agreement referred to in Section 3this Agreement, Parent's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission (the "COMMISSION") and all subsequent reports (collectively, the Registration Statement and "EXCHANGE ACT REPORTS") which have been filed by Parent with the Prospectus will conform in all material respects Commission or sent to its stockholders pursuant to the requirements Securities Exchange Act of 1934 (the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will "EXCHANGE ACT") do not 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 misleadingtherein, in the light of the circumstances under which they were made, except that not misleading. Such documents, when they were filed with the foregoing does not and shall not apply to statements Commission, conformed in or omissions from any of such documents based upon written information furnished all material respects to the Issuers by any Underwriter through requirements of the Representatives, if any, specifically for use thereinExchange Act and the rules and regulations of the Commission thereunder.
(cb) Each of Parent and the Issuers Company 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 DelawareMichigan, with power and authority (corporate or partnership, as the case may beand other) to own its properties and conduct its business as described in the ProspectusOffering Document; and each of Parent and the Issuers Company 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 where the failure to be so qualified qualify or to be in good standingstanding would, considering all such cases individually or in the aggregate, would aggregate 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 Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Prospectus, and the Indenture and such Offered Securities will constitute valid and legally binding obligations of each of the Issuers (assuming in the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and 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 rights of indemnification or contribution thereunder and (iii) general principles of equity.
(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 included in the Registration Statement and Prospectus present fairly in all material respects the financial 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 indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus, 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 Ferrellgas Partners Parent and its subsidiaries 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 interestswhole (a "MATERIAL ADVERSE EFFECT").
(qc) Each The entities listed on Schedule B hereto are the only direct or indirect subsidiaries 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) systemParent.
(rd) Each "significant subsidiary" of Parent other than the Issuers is, axx xfter 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" Company (as such term is defined in Rule 1-02 of Regulation S-X) and each Subsidiary Guarantor which is not a "significant subsidiary" (each a "SUBSIDIARY" and, collectively, the Investment Company Act of 1940"SUBSIDIARIES") has been duly incorporated or organized and is an existing corporation or limited liability company, as amendedthe case may be, in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Offering Document; and each Subsidiary 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 or to be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock or limited liability company interests, as the case may be, of each Subsidiary and of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock or limited liability company interests, as the case may be, of each Subsidiary and of the Company owned by the Parent, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
Appears in 1 contract
Representations and Warranties of the Issuers. Each of the Issuers, as of the date of each Terms Agreement referred to in Section 3, Issuers jointly and severally and jointly, represents and warrants to, and agrees with, to each Underwriter Purchaser that:
(a) A The registration statement (No. 333-71111)referred to in the Purchase Agreement and relating to the Preferred Securities, including a prospectusprospectus and all documents incorporated by reference therein, relating to the Registered Securities has been filed on Form S-3 with the Securities and Exchange Commission ("Commission") and has become effective. Such registration statement, as amended at including the time prospectus supplement with respect to the offering of any Terms Agreement Purchased Preferred Securities referred to in Section 32 (the "Prospectus Supplement") and all prior amendments and supplements thereto (other than supplements and amendments relating to securities that are not Purchased Preferred Securities), including all documents filed as a part thereof or incorporated therein pursuant to Item 12 of Form S-3 (other than the Statements of Eligibility and Qualification of the Trustees (the "Forms T-1")), is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statementprospectus, as so amended or supplemented as contemplated (including all material so incorporated by Section 3 to reflect reference therein) in the terms of the Offered Securities and the terms of offering thereof, as form first filed with the Commission after the date and time this Agreement is executed and delivered by the parties hereto Issuers pursuant to and in accordance with Rule 424(b) under the Act is hereinafter referred to as the "Prospectus."
("Rule 424(b)"b) under The Registration Statement and the Prospectus conform in all respects to the requirements of 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.
(b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act") ), and the pertinent published rules and regulations of the Commission ("Rules and Regulations") of the Commission, and did not include none of such documents includes any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on except that the date foregoing does not apply to statements or omissions in either of each Terms Agreement referred such documents based upon written information furnished to the Issuers by any Purchaser specifically for use therein. The documents incorporated by reference in Section 3, the Registration Statement and or the Prospectus will conform pursuant to Item 12 of Form S-3 of the Act, at the time they were filed with the Commission, complied in all material respects to with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Trust Indenture pertinent published rules and regulations thereunder (the "Exchange Act Rules and Regulations") and any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations, Regulations and neither of such documents will include any not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the light of the circumstances under which they were made, except that the foregoing does not and shall not apply to statements in or omissions from any of such documents based upon written information furnished to the Issuers by any Underwriter through the Representatives, if any, specifically for use thereinmisleading.
(c) Each of the Issuers The Trust has been duly incorporated or formed, as the case may be, created and is an validly existing corporation or limited partnership, as the case may be, a statutory business trust in good standing under the laws Business Trust Act of the State of Delaware, Delaware with the power and authority to enter into and perform its obligations under this Agreement, the Preferred Securities and the Trust Agreement (corporate or partnership, as the case may bedefined below) and to own its properties property 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 Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered conducted and will conform to the description thereof contained in the Prospectus, and the Indenture and such Offered Securities will constitute valid and legally binding obligations of each of the Issuers (assuming in the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and conduct no business 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 rights of indemnification or contribution thereunder and (iii) general principles of equity.
(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 than the transactions contemplated by the Terms this 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; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, each of the Issuers Amended and their subsidiaries have good Restated Trust Agreement (the "Trust Agreement") between the Company and valid title to all real properties and good title to all personal properties and assets described in the Prospectus as being owned by themtrustees named therein (the "EDE Trust Trustees" and, 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 together with the use made or to be made thereof by themIndenture Trustee and the Guarantee Trustees, 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 rightsTrustees") necessary to conduct and the business now operated by them, or presently employed by them, agreements 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 included in the Registration Statement and Prospectus present fairly in all material respects the financial 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 indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus, 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 Ferrellgas Partners and its subsidiaries taken as a whole, and, except as disclosed in or instruments contemplated by the Prospectus or for the regular quarterly distributions on the common units, senior units and general partner units of Ferrellgas Partners Trust Agreement 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 interestsProspectus.
(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, axx xfter 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
Samples: Purchase Agreement (Empire District Electric Trust Ii)
Representations and Warranties of the Issuers. Each of the IssuersIssuers hereby, jointly and severally, represents, warrants and covenants to the Initial Purchasers as of the date of each Terms Agreement referred to in Section 3, severally and jointly, represents and warrants to, and agrees with, each Underwriter thatfollows:
(a) A registration statement (NoThe Company hereby confirms that it has authorized the use of the Disclosure Package, the Preliminary Offering Memorandum and the Final Offering Memorandum in connection with the offer and sale of the Securities by the Initial Purchasers. 333-71111)Each document, including a prospectusif any, relating filed or to be filed pursuant 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 supplemented as contemplated by Section 3 to reflect the terms of the Offered Securities and the terms of offering thereof, as first 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(b) ("Rule 424(b)") under the Securities Act of 19331934, as amended ("the “Exchange Act"), including all material ”) and incorporated by reference therein, is hereinafter referred to as in the "Prospectus." No document has been Disclosure Package or the Final Offering Memorandum complied or will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed comply when it is filed in all material respects to with the requirements of the Act, the Trust Indenture Exchange Act of 1939, as amended ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and thereunder. The Preliminary Offering Memorandum, at the date thereof, did not include 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. At the date of this Agreement, the First Closing Date and the Second Closing Date, the Final Offering Memorandum did not and will not (and any amendment or supplement thereto, at the date thereof, at the First Closing Date and at the Second Closing Date, will not) contain 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 therein therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Subsidiary Guarantors make no representation or warranty as to information contained in or omitted from the Preliminary Offering Memorandum or the Final Offering Memorandum or amendments or supplements thereto in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchaser specifically for use therein as set forth on Schedule C hereto.
(b) The term “Disclosure Package” shall mean (i) the Preliminary Offering Memorandum, as amended or supplemented at the Applicable Time, (ii) the Final Term Sheet (as defined herein) and (iii) any other writings that the parties expressly agree in writing to treat as part of the Disclosure Package (“Issuer Written Information”). The Disclosure Package as of 6:00 p.m. (Eastern time) on the date of each Terms Agreement referred to in Section 3, hereof (the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will include “Applicable Time”) did not contain 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 therein not misleadingtherein, in the light of the circumstances under which they were made, except that the foregoing not misleading. The preceding sentence does not and shall not apply to statements in or omissions from any of such documents based the Disclosure Package in reliance upon and in conformity with written information furnished to the Issuers Company by or on behalf of any Underwriter through the Representatives, if any, Initial Purchaser specifically for use thereintherein as set forth on Schedule C hereto.
(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 Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; and when the Offered Securities are delivered and paid for pursuant to the Terms Agreement on the Closing Date (as defined below), the Indenture will have been duly executed and delivered, such Offered Securities will have been duly executed, authenticated, issued and delivered and will conform to the description thereof contained in the Prospectus, and the Indenture and such Offered Securities will constitute valid and legally binding obligations of each of the Issuers (assuming in the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable in accordance with their terms, except that the enforceability thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and 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 rights of indemnification or contribution thereunder and (iii) general principles of equity.
(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 included in the Registration Statement and Prospectus present fairly in all material respects the financial 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 indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus, 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 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, axx xfter 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. Each of the The Issuers, as of the date of each Terms Agreement referred to in Section 3jointly and severally, severally represent and jointly, represents and warrants warrant to, and agrees agree with, each Underwriter the several Purchasers that:
(a) A registration statement (No. 333-71111), including a prospectus, preliminary offering circular and an offering circular relating to the Registered Offered Securities has to be offered by the Purchasers have been filed prepared by the Company. Such preliminary offering circular and offering circular, as supplemented as of the date of this Agreement, together with the documents incorporated by reference therein and any other document approved by the Company for use in connection with the contemplated resale of the Offered 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 are hereinafter collectively referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented as contemplated by Section 3 to reflect the terms of the Offered Securities and the terms of offering thereof, as first filed with the Commission after Offering Document". On the date and time of this Agreement is executed and delivered by the parties hereto pursuant to and in accordance with Rule 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.
(b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the ActAgreement, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did Offering Document does not 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 therein therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Purchaser through Credit Suisse First Boston Corporation ("CSFBC") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Except as disclosed in the Offering Document, on the date of each Terms Agreement referred to in Section 3this Agreement, the Registration Statement Company's Annual Report on Form 10-K most recently filed with the Securities and Exchange Commission (the Prospectus will conform in "Commission") and all material respects subsequent reports (collectively, the "Exchange Act Reports") which have been filed by the Company with the Commission or sent to stockholders pursuant to the requirements Securities Exchange Act of 1934 (the "Exchange Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will ") do not 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 misleadingtherein, in the light of the circumstances under which they were made, except that not misleading. Such documents, when they were filed with the foregoing does not and shall not apply to statements Commission, conformed in or omissions from any of such documents based upon written information furnished all material respects to the Issuers by any Underwriter through requirements of the Representatives, if any, specifically for use thereinExchange Act and the rules and regulations of the Commission thereunder.
(cb) Each of the Issuers The Company 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 corporate power and authority (corporate or partnership, as the case may be) to own its properties and conduct its business as described in the ProspectusOffering Document; and each of the Issuers Company 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 where the failure so to be so qualified or to be in good standing, considering all such cases in the aggregate, qualify would not reasonably be expected to have a material adverse effect on the business, properties, condition (financial or otherwise) other), business, properties or results of operations of the Issuers Company and all of their its subsidiaries and affiliates taken as a whole (a "Material Adverse Effect").
(dc) Ferrellgas Partners Each Guarantor and each Significant Subsidiary (as defined in Regulation S-X under the Securities Act) of the Company has been duly organized and is an existing entity in good standing under the sole limited partner laws of Ferrellgas, L.P., a Delaware limited partnership (the "Operating Partnership")jurisdiction of its organization, with 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, partnership or limited partner interest liability company in good standing in all other jurisdictions in which its ownership or lease of 98.9899%property or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect; such limited partner interest all of the issued and outstanding capital stock or other equity interests of each Guarantor and each Significant Subsidiary of the Company 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 nonassessable; and the capital stock or other equity interests of each Guarantor and each Significant Subsidiary owned by certain provisions of the Delaware Revised Uniform Limited Partnership Act); Ferrellgas Partners owns such limited partner interest in the Operating Partnership Company, directly or through subsidiaries, is owned free from liens liens, encumbrances 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)defects.
(e1) The Indenture has been duly authorized by each of the Issuers; (2) the Notes and has been duly qualified under the Trust Indenture Act; the Offered Securities Guarantees have been duly authorizedauthorized by the Company and each of the Guarantors, respectively; and (3) when the Offered Securities Notes and the Guarantees are delivered and paid for pursuant to the Terms this Agreement on the Closing Date (as defined below), (i) the Indenture will have been duly executed and delivereddelivered by each of the Issuers, such Offered Securities (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 ProspectusOffering Document, and (iii) the Indenture and such Offered Securities the Notes will constitute valid and legally binding obligations of each of the Issuers (assuming in Company enforceable against the case of the Indenture, the due authorization, execution and delivery thereof by the Trustee), enforceable Company in accordance with their terms, except that the enforceability thereof may be limited by (i) subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws now or hereafter in effect of general applicability relating to or affecting creditors' rights generally, (ii) limitations under Federal or state securities laws with respect and to the rights of indemnification or contribution thereunder general equity principles and (iiiiv) 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 principles of equityapplicability relating to or affecting creditors' rights and to general equity principles.
(fe) Except as disclosed in the Prospectus, no 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 this 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 termsCompany.
(gf) The execution, delivery and performance of the Indenture and this Agreement by the Terms Agreement (including the provisions of this Agreement) Issuers, and the issuance and sale of the Offered Securities by the Issuers and compliance with the terms and provisions thereof will not (i) conflict with or result in a breach or 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 and provisions of, or constitute a default (with or without due notice and/or lapse of time) under, (i) the charter or by-laws or comparable governing documents of the Company or the respective Guarantors or (ii) any loan statute, rule, regulation or credit agreementorder of any governmental agency or body or any court, indenturedomestic or foreign, mortgagehaving jurisdiction over the Company or any subsidiary of the Company or any of their properties, note or other or, except for that certain Amended and Restated Credit Agreement dated as of February 9, 1998 (the "Credit Agreement") among the Company and the lenders thereunder, any agreement or instrument to which the Company or any of the Issuers or their subsidiaries such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of them the properties of the Company or any of their respective properties or assets such subsidiary is or may be boundsubject, except, in the case of clauses clause (ii) ), for such breaches, violations or (iii) where such conflict, violation, breach defaults which do not individually or default will not prevent in the consummation of the transactions contemplated herein or would not reasonably be expected to have aggregate cause a Material Adverse Effect.
(h) Each of the . The Issuers has have 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 .
(g) This Agreement (including the provisions of this Agreement) has been duly authorized, executed and delivered by the Company and each of the IssuersGuarantors.
(ih) Except as described disclosed in the ProspectusOffering Document, each of the Issuers Company and their its subsidiaries have good and valid marketable title to all real properties and good title to all personal other material properties and assets described in the Prospectus as being owned by them, in each case free from liens, claims, security interests or other encumbrances and defects 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 ProspectusOffering Document, each of the Issuers Company and their its subsidiaries hold any leased real or material personal property or buildings under valid and enforceable leases with no exceptions that would reasonably be expected to materially interfere with the use made or to be made thereof by them, taken as a whole.
(ji) Except as described in the Prospectus, each of the Issuers The Company and their its 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, 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 Issuers Company or any of their its subsidiaries, would, would individually or in the aggregateaggregate have a Material Adverse Effect.
(j) No labor dispute with the employees of the Company or any subsidiary exists or, reasonably be expected to the knowledge of the Company, is imminent that might 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 The Company and their 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 and, except as disclosed in the Offering Document, 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 Company or any of their its subsidiaries, would individually or in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect.
(ml) Except as disclosed in the ProspectusOffering Document, neither of the Issuers Company nor any of their its 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 with any substance that the clean-up or remediation is required by applicable 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, would individually or in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect; and neither of the Issuers Company is not aware of any pending investigation which would reasonably be expected to might lead to such a claim.
(nm) Except as disclosed in the ProspectusOffering Document, there are no pending actions, suits or proceedings pending, or to the knowledge of the Issuers, threatened, against or affecting either of the IssuersCompany, any of their its subsidiaries or any of their respective properties that, if determined adversely to the Issuers Company or any of their its subsidiaries, would, would individually or in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Issuers Company to perform their its obligations under the Indenture or the Terms Agreement (including the provisions of 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, to the Company's knowledge, threatened or contemplated.
(on) The financial statements included in the Registration Statement and Prospectus Offering Document present fairly in all material respects the financial position, position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicatedshown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis throughout the periods indicated, except as disclosed therein; and any schedules included in the Registration Statement present fairly in all material respects the information required to be stated thereinbasis.
(po) Except as disclosed in the ProspectusOffering Document (but without regard to Exchange Act Reports filed, or any other document used in connection with the contemplated resale of the Offered Securities, in either case, after the filing of the Company's Current Report on Form 8-K filed April 25, 2001 and dated April 24, 2001) since the date of the latest audited financial statements included in the Prospectus, 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 Ferrellgas Partners the Company 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 whole 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 Company on any class of their equity interestsits capital stock.
(qp) Each None of the Issuers is subject an open-end investment company, unit investment trust or face-amount certificate company that is or is required to the reporting requirements of either be registered under Section 13 or Section 15(d) 8 of the Securities Exchange United States Investment Company Act of 1934 1940 (the "Investment Company Act); and files reports with the Commission on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.
(r) Each none of the Issuers isis nor, axx xfter after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the ProspectusOffering Document, will be exempt from regulation as an "investment company" as such term is 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 19401939, as amendedamended (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(j) of Regulation S in the Company's debt securities.
(v) As of the Closing Date, the Guarantors will include all of the guarantors under the Credit Agreement.
Appears in 1 contract
