Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the Company and the Guarantors, as applicable, represents and warrants to, and agrees with, the Underwriters that: (a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission. (b) The Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus. (c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein. (d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement. (e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. (f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”). (g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights. (h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Samples: Underwriting Agreement (Allied Waste Industries Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the Company and the Guarantors, as applicable, Guarantors represents and warrants to, and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did Offering Memorandum does not, and as of the Closing Date any supplement or amendment to it will not, contain an 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, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth contained in this paragraph (a) shall not apply to statements in or omissions made in reliance from the Offering Memorandum (or any supplement or amendment thereto) based upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by the Underwriters Initial Purchasers expressly for use therein. No statement of a material fact included in stop order preventing the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements use of the Act and the rules and regulations of the Commission thereunder; the Registration StatementOffering Memorandum, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as any order asserting that any of the time transactions contemplated by this Agreement are subject to the registration requirements of the filing thereofAct, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use thereinhas been issued.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the ProspectusOffering Memorandum, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(fc) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”"MATERIAL ADVERSE EFFECT").
(gd) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(he) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”"LIEN"), except for Liens (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration StatementOffering Memorandum, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that which could not reasonably be expected to have a Material Adverse Effect. Each , and each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, and Commercial Reassurance Limited and Allied Receivables Funding IncorporatedLimited) will be a “Restricted Subsidiary” "RESTRICTED SUBSIDIARY" within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each Each of the Company and the GuarantorsGuarantors jointly and severally represents, as applicable, represents and warrants to, to and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under Company and the Act; Guarantors have prepared a preliminary offering memorandum dated December 12, 2003 (the “Preliminary Offering Memorandum”) and will prepare an offering memorandum dated the date hereof (the “Offering Memorandum”) setting forth information concerning the Company, the Guarantors, the Securities, the Common Stock and the Registration Statement constitutes an Rights Agreement, in each case, in form and substance satisfactory to you. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers pursuant to the terms of this Agreement. As used in this Agreement, “automatic shelf registration statementPreliminary Offering Memorandum” or “Offering Memorandum” means the Preliminary Memorandum or Offering Memorandum, as the case may be, including the Incorporated Documents (as described below). The Preliminary Offering Memorandum, as of its date did not, and the Offering Memorandum, as of the date hereof does not and as of any Delivery Date (as defined in Rule 405 under the ActSection 2(b)) will not, and, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated herebyor supplement thereto, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, will not as of the Applicable Time did not, and as of the Closing Date will notits respective date, contain an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, the Prospectus, Company and the Guarantors make no representation or warranty as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in or omitted from the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made Offering Memorandum in reliance upon and in conformity with the written information furnished in writing to the Company by or on the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements behalf of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly Initial Purchasers specifically for use inclusion therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the Company and the Guarantors, as applicablejointly and severally, represents and warrants to, and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andPreliminary Offering Memorandum, as of the determination date applicable to the Registration Statement (and any amendment thereof) its date, and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did Offering Memorandum do not, and as of the Closing Date any supplement or amendment to them will not, contain an 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, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth contained in this paragraph (a) shall not apply to statements in or omissions made in reliance from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by the Underwriters Initial Purchasers expressly for use therein. No statement stop order preventing the use of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus will conformOffering Memorandum, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as any order asserting that any of the time transactions contemplated by this Agreement are subject to the registration requirements of the filing thereofAct, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use thereinhas been issued.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied the Company and its subsidiaries has been duly incorporatedorganized, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation organization and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus Preliminary Offering Memorandum and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation or limited liability company authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”"MATERIAL ADVERSE EFFECT").
(gc) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable nonassessable and not subject to any preemptive or similar rights. The authorized capital stock of the Company conforms to the description thereof contained in the Offering Memorandum.
(hd) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Alliedthe Company. All of the outstanding shares of capital stock or other equity membership interests of each of the Company's subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessablenonassessable, and are owned by Alliedthe Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”"LIEN"), except as expressly provided under the Credit Agreement and the Sprint PCS Management Agreement, and except for security interests granted to the Rural Telephone Finance Cooperative, which will be released on the Closing Date.
(e) This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors. This Agreement conforms to the description hereof contained in the Offering Memorandum.
(f) The Warrant Agreement has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Warrant Agreement has been validly executed and delivered by the Company, the Warrant Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) Liens to the enforceability thereof may be created in connection with the issuance of the Noteslimited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) Liens rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.
(g) The Warrants have been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Warrants have been executed and countersigned in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchasers as otherwise disclosed in the Registration Statementpart of a Unit, the Basic Prospectus, Warrants will be entitled to the Prospectus or any Permitted Free Writing Prospectus benefits of the Warrant Agreement and (iii) such other Liens that could not reasonably will be expected to have a Material Adverse Effect. Each Subsidiary valid and binding obligations of the Company enforceable in accordance with their terms except as (other than Saguaro National Insurance Companyi) the enforceability thereof may be limited by bankruptcy, Global Indemnity Assurance Companyinsolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, Commercial Reassurance Limited the Warrants will conform to the description thereof contained in the Offering Memorandum.
(h) The Warrant Shares have been duly and Allied Receivables Funding Incorporatedvalidly authorized for issuance by the Company and, when issued pursuant to the terms of the Warrants and the Warrant Agreement, will be validly issued, fully paid, nonassessable and not subject to any preemptive or similar rights.
(i) The Indenture has been duly authorized by the Company and each of the Guarantors and, on the Closing Date, will have been validly executed and delivered by the Company and each of the Guarantors. When the Indenture has been validly executed and delivered by the Company and each of the Guarantors, the Indenture will be a “Restricted Subsidiary” within the meaning valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(j) The Initial Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Initial Notes have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement as part of a Unit, the Initial Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Initial Notes will conform to the description thereof contained in the Offering Memorandum.
(k) The Exchange Notes have been duly authorized by the Company. When the Exchange Notes are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture., the Exchange Notes will be entitled to the benefits of the Indenture and will be the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and
Appears in 1 contract
Samples: Purchase Agreement (Horizon Personal Communications Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the Company and the Guarantors, as applicable, Guarantors represents and warrants to, and agrees with, the Underwriters Initial Purchaser that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) Preliminary Offering Memorandum and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did Offering Memorandum do not, and as of the Closing Date any supplement or amendment to them will not, contain an 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, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth contained in this paragraph (a) shall not apply to statements in or omissions made in reliance from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by the Underwriters Initial Purchasers expressly for use therein. No statement stop order preventing the use of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus will conformOffering Memorandum, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as any order asserting that any of the time transactions contemplated by this Agreement are subject to the registration requirements of the filing thereofAct, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use thereinhas been issued.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied Waste Industries Inc. ("ALLIED") and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus Preliminary Offering Memorandum and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”"MATERIAL ADVERSE EFFECT").
(gc) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(hd) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by AlliedAllied , directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”"LIEN"), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus Offering Memorandum and (iii) except as to such other Liens that which could not reasonably be expected to have a Material Adverse Effect. Each , and each Subsidiary of the Company (other than Saguaro National Allied Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” "RESTRICTED SUBSIDIARY" within the meaning of the Indenture.
(e) This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company and each of the Guarantors and, on the Closing Date, will have been validly executed and delivered by the Company and each of the Guarantors. When the Indenture has been duly executed and delivered by the Company and each of the Guarantors, the Indenture will be a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws affecting creditors' rights and remedies generally and (ii) general principles of equity, including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies (whether such principles are considered in a proceeding at law or equity). On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Series A Notes
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As The Company and each of the Guarantors, jointly and severally, represent and warrant to the several Initial Purchasers on and as of the date hereof, each of the Company hereof and the Guarantors, as applicable, represents and warrants to, and agrees with, the Underwriters Closing Date that:
(a) The Registration Statement has heretofore become effective under When the Act; Securities are issued and delivered pursuant to this Agreement, the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as Securities will not be of the determination date applicable to same class (within the Registration Statement (and any amendment thereofmeaning of Rule 144A) and the offering contemplated hereby, as securities of the Company is or the Guarantors that are listed on a “well-known seasoned issuer” as defined in Rule 405 national securities exchange registered under the Act; no stop order Section 6 of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing ProspectusExchange Act, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, that are threatened by the Commissionquoted in a United States automated inter-dealer quotation system.
(b) The Disclosure PackageEach of the Preliminary Offering Memorandum and the Offering Memorandum, as of the Applicable Time its respective date, did not, and as of on the Closing Date Date, the Offering Memorandum will not, contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended except that this representation and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus warranty does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements in or omissions from the Preliminary Offering Memorandum and Offering Memorandum made in reliance upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by or on behalf of the Underwriters Initial Purchasers expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its respective date, contains all of the information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 2 and their compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the Exempt Resales in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(e) The Company, the Guarantors and each of their respective subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not, singularly or in the aggregate, have a material adverse effect on the condition (financial or otherwise), results of operations, business or prospects of the Company, the Guarantors and their respective subsidiaries taken as a whole (a "Material Adverse Effect").
(f) The Company will, on the Closing Date, have capitalization as set forth in the Offering Memorandum under the heading "Capitalization"; and all of the outstanding shares of capital stock of the Company and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company and the Guarantors, respectively, free and clear of any lien, charge, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party, except for Permitted Liens (as that term is defined in the Indenture) and as otherwise disclosed in the Offering Memorandum.
(g) Each of the Company and each Guarantor has full right, power and authority to execute and deliver this Agreement, the Indenture, the Registration Rights Agreement, the Securities and the Exchange Securities (collectively, the "Transaction Documents") to which it is a party and to perform its obligations hereunder and thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.
(i) The Registration Statement Rights Agreement has been duly authorized by the Company and each of the Basic Prospectus conformGuarantors and, when duly executed and delivered in accordance with its terms by each of the Prospectus Supplementparties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).
(j) The Indenture has been duly authorized by the Company and each of the Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). On the Closing Date, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus Indenture will conform, conform in all material respects with to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder; the Registration Statement, as .
(k) The Guarantees have been duly authorized by each of the Effective TimeGuarantors and, when the Notes have been duly executed, authenticated, issued and delivered as amended or supplemented provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of each of the time Guarantors, enforceable against each of the filing of any amendment Guarantors in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or supplement thereto, did not at law).
(l) The Securities and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; Exchange Securities have been duly authorized by the Basic Prospectus, as Company and each of the time of Guarantors and, when duly executed, authenticated, issued and delivered as provided in the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinIndenture and, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale case of the Notes, in when paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company and each case other than of the Basic Prospectus Guarantors, entitled to the benefits of the Indenture and enforceable against the Company and the Permitted Free Writing ProspectusesGuarantors in accordance with their terms, if any; except to the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming extent that such Permitted Free Writing Prospectus is so sent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commissionat law), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(em) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, Each Transaction Document conforms in all material respects to the requirements description thereof contained in the Offering Memorandum.
(n) The execution, delivery and performance by the Company and each of the Exchange Guarantors of each of the Transaction Documents to which it is a party, the issuance, authentication, sale and delivery of the Securities and the use of proceeds thereof and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents to which it is a party will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Guarantors pursuant to, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the property or assets of the Company or any Guarantor is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any Guarantor or any statute or any judgment, order, decree, rule or regulation of any court or arbitrator or governmental agency or body having jurisdiction over the Company or any Guarantor or any of their respective properties or assets; and no consent, approval, authorization or order of, or filing or registration with, any such court or arbitrator or governmental agency or body under any such statute, judgment, order, decree, rule or regulation is required for the execution, delivery and performance by the Company or each of the Guarantors of each of the Transaction Documents to which it is a party, the issuance, authentication, sale and delivery of the Securities and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents to which it is a party, except for such consents, approvals, authorizations, filings, registrations or qualifications (i) which shall have been obtained or made prior to the Closing Date, (ii) as may be required to be obtained or made under the Securities Act and applicable state securities laws as provided in the Registration Rights Agreement and (iii) which shall not adversely affect the ability of the Company and each Guarantor to consummate the transactions contemplated by the Transaction Documents.
(o) There are no contracts, agreements or understandings between the Company, any Guarantor and any person granting such person the right (other than rights which have been waived or satisfied) to require the Company or any Guarantor to file a registration statement under the Securities Act with respect to any securities of the Company or any guarantor (other than the Registration Rights Agreement) owned or to be owned by such person or to require the Company or any Guarantor to include such securities in the securities registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by the Company or any Guarantor under the Securities Act.
(p) Xxxxx Xxxxxxxx LLP are independent certified public accountants with respect to the Company and its subsidiaries (i) as required by the Securities Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied thereunder and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of Rule 101 of the IndentureCode of Professional Conduct of the American Institute of Certified Public Accountants ("AICPA") and its interpretations and rulings thereunder. The historical financial statements (including the related notes) contained or incorporated by reference in the Offering Memorandum comply in all material respects with the requirements applicable to a registration statement on Form S-1 under the Securities Act; such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby and fairly present the financial position of the entities purported to be covered thereby at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated; and the financial information contained in the Offering Memorandum under the headings "Summary--Summary Historical Consolidated Financial Information", "Capitalization", "Selected Historical Consolidated Financial Data" and "Management's Discussion and Analysis of Financial Condition and Results of Operations", is derived from the accounting records of the Company and its subsidiaries and such sections of the Offering Memorandum fairly present the information purported to be shown thereby in all material respects. The other historical financial and statistical information and data included or incorporated by reference in the Offering Memorandum are, in all material respects, fairly presented.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, The Company and each of the Company Guarantors represent, warrant and the Guarantors, agree as applicable, represents and warrants to, and agrees with, the Underwriters thatfollows:
(a) The Registration Statement has heretofore become effective under Neither the Act; Preliminary Offering Memorandum nor the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andOffering Memorandum, as of the determination its respective date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated herebyor supplement thereto), the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or contains any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to the representations and warranties set forth information contained in this paragraph shall not apply to statements or omissions made omitted from the Offering Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters expressly Initial Purchaser specifically for use inclusion therein, it being understood that the only information so furnished by the Initial Purchaser to the Company is that set forth in Section 11 hereof. No statement of a material fact included in order or decree preventing the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements use of the Act and the rules and regulations of the Commission thereunder; the Registration StatementOffering Memorandum, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and will not contain an untrue statement no proceeding for that purpose has commenced or is pending or, to the knowledge of a material fact the Company, is contemplated.
(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum, each as amended or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectussupplemented, as of its date, contains all the time of the filing thereofinformation specified in, and as amended or supplemented as of meets the time of the filing of any amendment or supplement theretorequirements of, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d144A(d)(4) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), .
(c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 Each of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of the state of its jurisdiction of incorporation and has the corporate power and authority to carry on conduct its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified or to be in good standing would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(gd) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(he) The entities listed on Schedule B hereto Guarantors are the only subsidiaries, direct or indirect, of Alliedthe Company. All of the outstanding shares of capital stock or other equity interests of each of the Company’s subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and and, except as described in the Offering Memorandum, are owned by Allied, directly or indirectly through one or more subsidiaries, the Company free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”).
(f) The market-related and industry data included in the Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates by the Company derived from sources which the Company believes to be reliable and accurate in all material respects.
(g) The Company has all requisite corporate power and authority to execute, except for deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Notes.
(h) Each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Guarantees.
(i) Liens This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming due authorization, execution and delivery by the Initial Purchaser, will constitute the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to be created (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(j) The Indenture has been duly authorized by the Company and the Guarantors, and the Indenture constitutes the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). No qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the “TIA”), is required in connection with the issuance offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales other than in connection with the performance of the Company’s obligations under the Registration Rights Agreement. The Indenture and the Notes conform in all material respects to the description thereof in the Offering Memorandum.
(k) The Series A Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Series A Notes have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Series A Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). On the Closing Date, the Series A Notes, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(l) On or before the Closing Date, the Series B Notes will have been duly authorized by the Company. When the Series B Notes are issued, executed and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer provided for in the Registration Rights Agreement, the Series B Notes will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). When issued, the Series B Notes will conform in all material respects to the description thereof in the Offering Memorandum.
(m) The Guarantees to be endorsed on the Series A Notes by each Guarantor have been duly authorized by such Guarantor and, on the Closing Date, will have been duly executed and delivered by each Guarantor. When the Series A Notes have been issued, executed and authenticated in accordance with the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of the Indenture and will be the valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether enforcement is considered in a proceeding in equity or at law).
(n) The Guarantees to be endorsed on the Series B Notes (the “Series B Guarantees”) by each Guarantor have been duly authorized by the Guarantors, and when issued, will have been duly executed and delivered by each Guarantor. When the Series B Notes have been issued, executed and authenticated in accordance with the terms of the Registration Rights Agreement and the Indenture the Series B Guarantee to be endorsed on the Series B Notes will be entitled to the benefits of the Indenture and will be the valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(o) The Registration Rights Agreement has been duly authorized by the Company and the Guarantors and, on the Closing Date, will have been duly executed and delivered by the Company and each of the Guarantors. When the Registration Rights Agreement has been duly executed and delivered, the Registration Rights Agreement will be a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). On the Closing Date, the Registration Rights Agreement, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(p) Neither the Company nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, (ii) Liens as otherwise disclosed in default in the Registration Statementperformance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Basic Prospectusfinancial condition or prospects of the Company and its subsidiaries, taken as a whole, to which the Prospectus Company or any Permitted Free Writing Prospectus of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound or (iii) in violation in any material respect of any law, statute or ordinance or any rule, regulation, injunction or decree of any court or governmental agency to which their property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise, or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (ii) and (iii) ), for such other Liens that could defaults, violations and failures as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(q) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company and each of the Guarantors, compliance by the Company and each of the Guarantors with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such as may be required under the securities or Blue Sky laws of the various states), except as have been obtained or made, (ii) violate any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, except for such conflicts or breaches for which the Company has obtained, or will obtain prior to the Closing Date, a consent or waiver, (iv) violate or conflict with any applicable law, statute or ordinance or any rule, regulation, injunction or decree of any court or governmental agency, or (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, except in the case of clauses (i), (iii), (iv) and (v), for any such violations, conflicts, breaches and defaults that would not individually or in the aggregate have a Material Adverse Effect. Each Subsidiary .
(r) The Company and each of the Company (other than Saguaro National Insurance CompanyGuarantors are, Global Indemnity Assurance Companyand immediately after the consummation of the transactions contemplated hereby, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a Solvent. As used herein, the term “Restricted SubsidiarySolvent” means, with respect to any person, that as of the date of determination both (i)(a) the then fair saleable value of the property of such person is (1) greater than the total amount of the liabilities (including contingent liabilities) of such person and (2) not less than the amount that will be required to pay the probable liabilities on such person’s then existing debts as they become absolute and due considering all financing alternatives and potential asset sales reasonably available to such person; (b) such person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (c) such person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (ii) such person is “Solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposed of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the Indenturefacts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Appears in 1 contract
Samples: Purchase Agreement (Broder Bros Co)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each Each of the Company and the GuarantorsGuarantors jointly and severally represents, as applicable, represents and warrants to, to and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under Company and the Act; Guarantors have prepared a preliminary offering memorandum dated October 3, 2001 (the "PRELIMINARY OFFERING MEMORANDUM") and will prepare an offering memorandum dated the date hereof (the "OFFERING MEMORANDUM") setting forth information concerning the Company, the Guarantors, the Securities, the Common Stock and the Registration Statement constitutes an “automatic shelf registration statement” Rights Agreement, in each case, in form and substance satisfactory to you. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers pursuant to the terms of this Agreement. As used in this Agreement, "PRELIMINARY OFFERING MEMORANDUM" or "OFFERING MEMORANDUM" means the Preliminary Memorandum or Offering Memorandum, as the case may be, including the Incorporated Documents (as described below) as amended or supplemented. Each of the Preliminary Offering Memorandum and the Offering Memorandum, will not as of its respective date, and the Offering Memorandum will not as of any Delivery Date (as defined in Rule 405 under the ActSection 2(b)), and, as of the determination date applicable to the Registration Statement (and contain any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, the Prospectus, Company and the Guarantors make no representation or warranty as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in or omitted from the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made Offering Memorandum in reliance upon and in conformity with the written information furnished in writing to the Company by or on the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements behalf of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly Initial Purchasers specifically for use inclusion therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As The Company and each of the Guarantors (as of the date hereof and the Closing Date) represent, warrant and agree as follows (and all of such representations and warranties shall be deemed to include Schmalbach, and all references to the Company in this Section shall xxxxxx xxat the Company has acquired Schmalbach as of the date hereof, each of the Company and the Guarantors, as applicable, represents and warrants to, and agrees with, the Underwriters that:):
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (Preliminary Ofxxxxxx Xxxorandum and any amendment thereof) and the offering contemplated hereby, Offering Memorandum have been prepared by the Company is a “well-known seasoned issuer” as defined for use by the Initial Purchasers in Rule 405 under connection with the Act; no stop Exempt Resales. No order of the Commission or decree preventing or suspending the use of the Basic ProspectusPreliminary Offering Memorandum or the Offering Memorandum, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or order asserting that the effectiveness transactions contemplated by this Agreement are subject to the registration requirements of the Registration StatementSecurities Act, has been issued, issued and no proceedings proceeding for such that purpose have been instituted has commenced or is pending or, to the knowledge of the Company’s knowledge after due inquiry, are threatened by the Commissionis contemplated.
(b) The Disclosure PackagePreliminary Offering Memorandum, the Offering Memorandum and the Company's filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") that are incorporated by reference therein as of the Applicable Time their respective dates did not, and the Offering Memorandum as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any a material fact necessary necessary, in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations this representation and warranties set forth in this paragraph warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements on behalf of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters Initial Purchasers expressly for use therein.
(dc) Prior to The market-related and industry data included in the execution of this Agreement, Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates by the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; derived from sources which the Company has not, directly or indirectly, prepared, used or referred believes to any Permitted Free Writing Prospectus except be reliable and accurate in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and all material respects.
(d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the The Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 a corporation duly incorporated and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation and in good standing under the laws of its jurisdiction the state of incorporation and has the Indiana with all requisite corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its propertiesproperties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and each is duly qualified to conduct its business and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to qualify or to be so qualified in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, financial condition properties or results of operations of Allied the Company and its subsidiaries, taken as a whole (a “"Material Adverse Effect”").
(e) Each of the Company's subsidiaries is a corporation duly incorporated and validly existing and in good standing under the laws of its state of organization with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such qualification, except where the failure so to qualify or to be in good standing does not have a Material Adverse Effect.
(f) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Notes.
(g) All outstanding shares of capital stock of Allied Each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rightsGuarantees.
(h) The entities listed on Schedule B hereto are This Agreement has been duly authorized, executed and delivered by the only subsidiariesCompany and each Guarantor and, direct or indirectassuming due authorization, of Allied. All execution and delivery by the Initial Purchasers, constitutes the valid and binding agreement of the outstanding shares Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) the effects of capital stock bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy.
(i) The Registration Rights Agreement has been duly authorized by the Company and each Guarantor and, upon its execution and delivery by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, will constitute the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity interests or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Registration Rights Agreement will conform to the description thereof in the Offering Memorandum in all material respects.
(j) The Indenture has been duly authorized by the Company and each Guarantor, and upon its execution and delivery by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. No qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the "TIA"), is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales other than in connection with the performance of the Company's obligations under the Registration Rights Agreement. The Indenture will conform to the description thereof in the Offering Memorandum in all material respects.
(k) The Series A Notes have been duly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication, execution and delivery of the Series A Notes by the Trustee in accordance with the terms of the Indenture, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Series A Notes will conform to the description thereof in the Offering Memorandum in all material respects.
(l) The Guarantees to be endorsed on the Series A Notes have been duly authorized by each Guarantor and, if and when executed and delivered by each Guarantor in accordance with the terms of the Indenture and, assuming due authentication of the Series A Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, have been validly issued and delivered, and will constitute valid and binding obligations of each of the Guarantors, entitled to the benefits of the Indenture, enforceable against each of the Guarantors in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether enforcement is considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. The Guarantees will conform to the description thereof in the Offering Memorandum in all material respects.
(m) The Series B Notes will have been duly authorized by the Company on or before the Closing Date and, if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer provided for in the Registration Rights Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Series B Notes will conform to the description thereof in the Offering Memorandum in all material respects.
(n) The guarantees to be endorsed on the Series B Notes (the "Series B Guarantees") will have been duly authorized by each Guarantor on or before the Closing Date and, if and when executed and delivered by each Guarantor, if and when the Series B Notes are issued and authenticated in accordance with the terms of the Registration Rights Agreement and the Indenture, the Series B Guarantees to be endorsed on the Series B Notes will be the valid and binding obligation of each Guarantor, enforceable against each Guarantor in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(o) The Company has all requisite corporate power and authority to enter into the Credit Facilities and any and all other agreements and instruments ancillary to or entered into in connection with the transactions contemplated by the Credit Facilities (collectively, the "Credit Documents").
(p) Each of the Credit Documents was duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its respective terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(q) Each of the Company and Ball Pan-European Holdings, Inc. has all requisite corporate power and authority to enter into the Acquisition Agreement and any and all other agreements, side letters and instruments ancillary to or entered into in connection with the transactions contemplated by the Acquisition Agreement.
(r) The Acquisition Agreement has been duly and validly authorized, executed and delivered by the Company and Ball Pan-European Holdings, Inc. and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and binding agreement of each of the Company and Ball Pan-European Holdings, Inc., enforceable against each of the Company and Ball Pan-European Holdings, Inc. in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(s) All the shares of capital stock, partnership, membership or other equity interest of the Company and its Restricted Subsidiaries (as defined in the Offering Memorandum) and other material subsidiaries outstanding prior to the issuance of Allied the Series A Notes have been duly authorized and validly issued and are fully paid and non-assessablenonassessable. All of the issued shares of the capital stock, and partnership, membership or other equity interest of each subsidiary of the Company are owned by Allied, directly or indirectly through one or more subsidiariesby the Company (except for directors' qualifying shares), free and clear of any security interestall liens, claimencumbrances, lien, encumbrance or adverse interest of any nature (each, a “Lien”)claims, except for (i) Liens to be created in connection with the issuance of the Notesthose liens, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus encumbrances or any Permitted Free Writing Prospectus and (iii) such other Liens claims that could would not reasonably be expected to have a Material Adverse Effect.
(t) Other than as disclosed in the Offering Memorandum, the Company does not own capital stock or other equity interests of any corporation or entity which would be required by the Indenture to be a Guarantor thereunder. Each Subsidiary All of the Company (Company's domestic subsidiaries other than Saguaro National Insurance (i) Ball Corporation (a Nevada corporation), Ball Glass Containers, Inc., Ball Metal Container Corporation, Ball Technology Licensing Corporation, Heekin Can, Inc., Muncie & Western Railroad Company, Global Indemnity Assurance CompanyBall Asia Servxxxx Ximited, Commercial Reassurance Limited Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and Allied Receivables Funding Incorporatedany other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") will be a “Restricted Subsidiary” within the meaning of the Indenture.and (ii)
Appears in 1 contract
Samples: Purchase Agreement (Ball Corp)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereofhereof (or such later date as provided herein, as applicable), each of the Company and the Guarantors, as applicable, Guarantors (which are subsidiaries of the Company on the date hereof) represents and warrants to, and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) Preliminary Offering Memorandum and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did Offering Memorandum do not, and as of the Closing Date any supplement or amendment to them will not, contain an 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, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state misleading in any material fact necessary in order to make the statements thereinrespect, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth contained in this paragraph (a) shall not apply to statements in or omissions made in reliance from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by the Underwriters Initial Purchasers expressly for use therein. No statement stop order preventing the use of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus will conformOffering Memorandum, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as any order asserting that any of the time transactions contemplated by this Agreement are subject to the registration requirements of the filing thereofAct, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use thereinhas been issued.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus Preliminary Offering Memorandum and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied the Company and its subsidiaries, taken as a whole or draw into question adversely affect the validity of this Agreement or the other Operative Documents (a “Material Adverse Effect”"MATERIAL ADVERSE EFFECT").
(gc) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(hd) The entities listed on Schedule B C hereto are the only subsidiaries, direct or indirect, of Alliedthe Company. For purposes of this Agreement and the other Operative Documents, the Company's subsidiaries (including subsidiary Guarantors) include all entities that will become subsidiaries (or subsidiary Guarantors) of the Company upon the consummation of the acquisition of Addison Structural Services, Inc. and all representations and warranties pertaining to such subsidiaries (or subsidiary Guarantors) who become such after the date hereof shall be deemed made only as of such later date or dates. All of the outstanding shares of capital stock or other equity interests of each of the Company's subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Alliedthe Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”"LIEN") other than Permitted Liens (as defined in the Indenture), except for (i) Liens to be created in connection with under the issuance of the Notes, (ii) Liens as otherwise credit agreements disclosed in the Registration StatementOffering Memorandum and restrictions on transfers under federal and state securities laws.
(e) This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company and each of the Guarantors and, on the Closing Date, will have been validly executed and delivered by the Company and each of the Guarantors. When the Indenture has been duly executed and delivered by the Company and each of the Guarantors, and, assuming the due authorization, execution and delivery by the Trustee if required, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) Indenture will be a “Restricted Subsidiary” within the meaning of the Indenture.valid and binding
Appears in 1 contract
Samples: Purchase Agreement (Schuff Steel Co)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, The Company and each of the Guarantors represent, warrant and agree as follows (all references to subsidiaries of the Company shall be deemed to include Alpha and its subsidiaries only as of the Guarantors, as applicable, represents and warrants to, and agrees with, the Underwriters that:Closing Date):
(a) The Registration Statement has heretofore become effective under Neither the Act; Preliminary Offering Memorandum nor the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andOffering Memorandum, as of the determination its respective date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated herebyor supplement thereto), the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or contains any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to the representations and warranties set forth information contained in this paragraph shall not apply to statements or omissions made omitted from the Offering Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters expressly Initial Purchasers specifically for use inclusion therein, it being understood that the only information so furnished by the Initial Purchasers to the Company is that set forth in Section 11 hereof. No statement of a material fact included in order or decree preventing the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements use of the Act and the rules and regulations of the Commission thereunder; the Registration StatementOffering Memorandum, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and will not contain an untrue statement no proceeding for that purpose has commenced or is pending or, to the knowledge of a material fact the Company, is contemplated.
(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum, each as amended or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectussupplemented, as of its date, contains all the time of the filing thereofinformation specified in, and as amended or supplemented as of meets the time of the filing of any amendment or supplement theretorequirements of, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d144A(d)(4) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), .
(c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 Each of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of the state of its jurisdiction of incorporation and has the corporate power and authority to carry on conduct its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified or to be in good standing would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(gd) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(he) The As of the date of this Agreement, TSM Acquisition Co. is the only subsidiary of the Company. As of the Closing Date and after consummation of the transactions contemplated by the Stock Purchase Agreement, the entities listed on Schedule B A hereto are will be the only subsidiaries, direct or indirect, of Alliedthe Company. All of the outstanding shares of capital stock or other equity interests of each of the Company’s subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are and, except as described in the Offering Memorandum, are, or as of the Closing date will be, owned by Alliedthe Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”).
(f) The market-related and industry data included in the Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates by the Company derived from sources which the Company believes to be reliable and accurate in all material respects.
(g) The Company has all requisite corporate power and authority to execute, except for deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Notes.
(h) Each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Guarantees.
(i) Liens This Agreement has been duly authorized, executed and delivered by the Company and TSM and, on the Closing Date, will have been duly authorized, executed and delivered by the Alpha Guarantors and, assuming due authorization, execution and delivery by the Initial Purchasers, will constitute the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to be created (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(j) The Indenture has been duly authorized by the Company and TSM and, on the Closing Date, will have been duly authorized by the Alpha Guarantors and, upon its execution and delivery by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Trustee, will constitute the valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). No qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the “TIA”), is required in connection with the issuance offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales other than in connection with the performance of the Company’s obligations under the Registration Rights Agreement. The Indenture, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(k) The Series A Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Series A Notes have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Series A Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). On the Closing Date, the Series A Notes, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(l) On or before the Closing Date, the Series B Notes will have been duly authorized by the Company. When the Series B Notes are issued, executed and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer provided for in the Registration Rights Agreement, the Series B Notes will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). When issued, the Series B Notes will conform in all material respects to the description thereof in the Offering Memorandum.
(m) The Guarantees to be endorsed on the Series A Notes by each Guarantor have been duly authorized by TSM and, on the Closing Date, will have been duly authorized by the Alpha Guarantors and duly executed and delivered by each Guarantor. When the Series A Notes have been issued, executed and authenticated in accordance with the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of the Indenture and will be the valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether enforcement is considered in a proceeding in equity or at law).
(n) The Guarantees to be endorsed on the Series B Notes (the “Series B Guarantees”) by each Guarantor have been duly authorized by TSM and on the Closing Date will have been duly authorized by the Alpha Guarantors, and, when issued, will have been duly executed and delivered by each Guarantor. When the Series B Notes have been issued, executed and authenticated in accordance with the terms of the Registration Rights Agreement and the Indenture, the Series B Guarantee to be endorsed on the Series B Notes will be entitled to the benefits of the Indenture and will be the valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(o) The Registration Rights Agreement has been duly authorized by the Company and TSM and, on the Closing Date, will have been duly authorized by the Alpha Guarantors and duly executed and delivered by the Company and each of the Guarantors. When the Registration Rights Agreement has been duly executed and delivered, the Registration Rights Agreement will be a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). On the Closing Date, the Registration Rights Agreement, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum.
(p) Neither the Company nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, (ii) Liens as otherwise disclosed in default in the Registration Statementperformance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Basic Prospectusfinancial condition or prospects of the Company and its subsidiaries, taken as a whole, to which the Prospectus Company or any Permitted Free Writing Prospectus of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound or (iii) in violation in any material respect of any law, statute or ordinance or any rule, regulation, injunction or decree of any court or governmental agency to which their property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise, or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (ii) and (iii) ), for such other Liens that could defaults, violations and failures as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(q) Each of the Credit Facility and any and all other agreements and instruments ancillary to or entered into in connection with the transactions contemplated by the Credit Facility (collectively, the “Credit Documents”), have been duly and validly authorized, by the Company and each of the Guarantors. When the Credit Documents have been duly executed and delivered, the Credit Documents will constitute the valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with their respective terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(r) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company and each of the Guarantors, compliance by the Company and each of the Guarantors with all provisions hereof and thereof, the consummation of the transactions contemplated hereby and thereby, the consummation of the Acquisition and the execution, delivery and performance of the Credit Documents will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such as may be required under the securities or Blue Sky laws of the various states), except as have been obtained or made, (ii) violate any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, except for such conflicts or breaches for which the Company has obtained, or will obtain prior to the Closing Date, a consent or waiver, (iv) violate or conflict with any applicable law, statute or ordinance or any rule, regulation, injunction or decree of any court or governmental agency, or (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound except as contemplated by the Credit Facility, and, in the case of clauses (i), (iii), (iv) and (v), except for any such violations, conflicts, breaches and defaults that would not individually or in the aggregate have a Material Adverse Effect. Each Subsidiary .
(s) The Company and each of the Company (other than Saguaro National Insurance CompanyGuarantors are, Global Indemnity Assurance Companyand immediately after the consummation of the Transactions, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a Solvent. As used herein, the term “Restricted SubsidiarySolvent” means, with respect to any person, that as of the date of determination both (i)(a) the then fair saleable value of the property of such person is (1) greater than the total amount of the liabilities (including contingent liabilities) of such person and (2) not less than the amount that will be required to pay the probable liabilities on such person’s then existing debts as they become absolute and due considering all financing alternatives and potential asset sales reasonably available to such person; (b) such person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (c) such person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (ii) such person is “Solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposed of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the Indenturefacts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Appears in 1 contract
Samples: Purchase Agreement (Broder Bros Co)
Representations, Warranties and Agreements of the Company and the Guarantors. As The Company and the Guarantors jointly and severally represent and warrant to, and agree with, the several Initial Purchasers on and as of the date hereof, each of the Company hereof and the Guarantors, Closing Date (as applicable, represents and warrants to, and agrees with, the Underwriters defined in Section 3) that:
(a) The Registration Statement has heretofore become effective under Each of the Act; Preliminary Offering Memorandum and the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andOffering Memorandum, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated herebyits respective date, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did not, and as of on the Closing Date the Offering Memorandum will not, contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Prospectus, Company and the Guarantors make no representation or warranty as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in or omitted from the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made Offering Memorandum in reliance upon and in conformity with written information relating to the Initial Purchasers furnished in writing to the Company by the Underwriters expressly or on behalf of any Initial Purchaser specifically for use therein. No statement therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its respective date, contains all of the information that, if requested by a material fact included in prospective purchaser of the Prospectus shall have been omitted from Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the ProspectusSecurities Act.
(c) The Registration Statement and Assuming the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements accuracy of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties of the Initial Purchasers contained in Section 2 and their compliance with the agreements set forth in this paragraph shall therein, it is not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from usingnecessary, in connection with the offer issuance and sale of the NotesSecurities to the Initial Purchasers and the offer, “free writing prospectuses” (as defined resale and delivery of the Securities by the Initial Purchasers in Rule 405 the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Act) pursuant Securities Act or to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.qualify the
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As The Company and each of the Guarantors represent and warrant to, and agree with, the Initial Purchaser on and as of the date hereof, each of the Company hereof and the Guarantors, as applicable, represents and warrants to, and agrees with, the Underwriters Closing Date that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andOffering Memorandum, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did hereof does not, and as of on the Closing Date will not, contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Prospectus, Company and the Guarantors make no representation or warranty as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made Offering Memorandum in reliance upon and in conformity with written information relating to the Initial Purchaser furnished in writing to the Company by or on behalf of the Underwriters expressly Initial Purchaser specifically for use therein. No statement therein (the "Initial Purchaser's Information").
(b) The Offering Memorandum, as of the date hereof, contains all of the information that, if requested by a material fact included in prospective purchaser of the Prospectus shall have been omitted from Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the ProspectusSecurities Act.
(c) The Registration Statement and Assuming the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements accuracy of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties of the Initial Purchaser contained in Section 2 and its compliance with the agreements set forth therein, it is not necessary, in this paragraph shall not apply to statements or omissions made in reliance upon connection with the issuance and in conformity with information furnished in writing sale of the Securities to the Company Initial Purchaser and the offer, resale and delivery of the Securities by the Underwriters expressly for use thereinInitial Purchaser in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(d) Prior to the execution of this AgreementNFC Castings, the Company has notInc., directly or indirectly, offered or sold any Notes by means of any “prospectus” a Delaware corporation (within the meaning of the Act"Holdings") or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus Delaware and the Permitted Free Writing Prospectuses, if any, Company and to own, lease each of the Company's subsidiaries have been duly incorporated and operate its propertiesare validly existing as corporations under the laws of the state of their respective organization, and each is of the Company, Holdings, and each of the Company's subsidiaries are duly qualified to do business and is are in good standing as a foreign corporation authorized to do business corporations in each jurisdiction in which the nature of its business or its their respective ownership or leasing lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged and to take the actions necessary to consummate each of the transactions contemplated by this Agreement and the Offering Memorandum (the "Transactions"), except where the failure to be so qualified qualify or have such power or authority would not not, singularly or in the aggregate, have a material adverse effect on the businesscondition (financial or otherwise), prospects, financial condition or results of operations operations, 3 3 business or prospects of Allied the Company and its subsidiaries, subsidiaries taken as a whole (a “"Material Adverse Effect”").
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, The Company and each of the Company and the Guarantors, as applicable, Guarantors represents and warrants to, and agrees with, the Underwriters thatInitial Purchasers that as of the date hereof:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), andPreliminary Offering Memorandum, as of the determination date applicable to the Registration Statement (and any amendment thereof) its date, and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, Offering Memorandum as of the Applicable Time did date hereof does not, and as of at the Closing Date will not, contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact required to be stated therein or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall Section l(a) do not apply to statements or omissions in the Preliminary Offering Memorandum or the Offering Memorandum made in reliance upon on and in conformity with information furnished in writing to the Company in writing by or on behalf of the Underwriters Initial Purchasers expressly for use therein. No statement .
(b) Assuming the Notes are issued, sold and delivered under the circumstances contemplated by the Offering Memorandum and in this Agreement, (i) the registration under the Securities Act of a material fact included the Notes or the Subsidiary Guarantees or the qualification of the Indenture in respect of the Notes under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), is not required in connection with the offer and sale of the Notes to the Initial Purchasers in the Prospectus shall have been omitted manner contemplated by the Offering Memorandum or this Agreement and (ii) the initial resales of the Notes by the Initial Purchasers on the terms and in the manner set forth in the Offering Memorandum and Section 3 hereof are exempt from the Disclosure Package and no statement registration requirements of a material fact included in the Disclosure Package shall be omitted from the ProspectusSecurities Act.
(c) The Registration Statement documents incorporated by reference in the Preliminary Offering Memorandum and the Basic Prospectus conformOffering Memorandum when they became effective or were filed with the Commission, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, conformed in all material respects with to the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, and none of such documents, when read together with the other information in the Offering Memorandum, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Offering Memorandum when such documents became effective or are filed with the Commission, as the case may be, will conform in all material respects to requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as none of such documents, when read together with the time of other information in the filing of any amendment or supplement theretoOffering Memorandum, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the The Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 a corporation duly organized and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation and has the Delaware with full corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its propertiesproperties and conduct its business as described in the Offering Memorandum, and each is duly qualified and registered as a foreign corporation for the transaction of business and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature character of its the business conducted by it or its ownership the location of the properties owned or leasing of property requires leased by it make such qualification, qualification or registration necessary (except where the failure to be so qualified qualify or register would not have a Material Adverse Effect (as defined below)). The Company has an authorized capitalization as set forth under the caption "Capitalization" in the Offering Memorandum. On the date hereof and on the Closing Date all of the issued and outstanding shares of capital stock of the Company (including the shares of common stock to be issued in the Common Stock Offering and upon conversion of the Company's 7 1/4% Mandatorily Convertible Preferred Stock) have been duly authorized and will be validly issued and fully paid and nonassessable and will conform to the description thereof contained in or incorporated by reference in the Offering Memorandum. As used herein, "Material Adverse Effect" means a material adverse effect on the condition (financial or otherwise), results of operations, business, prospects, financial condition earnings or results prospects of operations of Allied the Company and its subsidiariesthe Subsidiaries (as defined below), taken as a whole (a “Material Adverse Effect”)whole.
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, The Company and each of the Company and the Guarantors, as applicablejointly and severally, represents and warrants to, and agrees with, the Underwriters thatthat as of the date hereof:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop No order of the Commission preventing or suspending the use of the Basic Prospectus, the any Preliminary Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened issued by the Commission, and the Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act.
(b) The Disclosure Package, as of at the Applicable Time Time, did not, and as of the Closing Date will not, not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall Section 1(b) do not apply to statements or omissions in the Disclosure Package made in reliance upon on and in conformity with information furnished in writing to the Company in writing by or on behalf of the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement Company (including its agents and representatives, other than the Basic Prospectus conformUnderwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Prospectus SupplementSecurities Act) (other than the Preliminary Prospectus, the Prospectus Pricing Term Sheet, the Prospectus, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any amendments other document listed on Schedule IV) that constitutes an offer to sell or solicitation of an offer to buy the Registration StatementNotes (each such communication by the Company, an “Issuer Free Writing Prospectus”) without the Basic prior consent of the Underwriters; and any such Issuer Free Writing Prospectus or the use of which has been previously consented to by the Underwriters is set forth substantially in form and substance as attached hereto on Schedule IV. Each such Issuer Free Writing Prospectus will conform, complied in all material respects with the requirements of Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act and (to the rules and regulations of extent required thereby) and, when taken together with the Commission thereunder; the Registration StatementPreliminary Prospectus accompanying, as of the Effective Timeor delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as amended or supplemented as of when taken together with the time of Prospectus at the filing of Closing Date will not, contain any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the representations Company and warranties set forth the Guarantors make no representation and warranty with respect to any statements or omissions made in this paragraph shall each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not apply earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the effective date of the Registration Statement, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished in writing to the Company in writing by such Underwriter through the Underwriters Representative expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 Prospectus and any amendment or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statementsupplement thereto.
(e) The documents incorporated by reference into in the Registration Statement, the Basic Prospectus, Disclosure Package and the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectusconformed, when such documents were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, Disclosure Package or Prospectus, when such documents are filed with the Commission, will conform, as the case may be, conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied The Company is a corporation duly organized and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation and has the Delaware with full corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.authority
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the The Company and the Guarantors, as applicablejointly and severally represent, represents warrant and warrants to, and agrees with, the Underwriters agree that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf A registration statement” (as defined in Rule 405 under the Act)statement on Form S-1, andand amendments Xx. 0, as of the determination date applicable Xx. 0, Xx. 0 and No. 4 thereto, with respect to the Registration Statement (and any amendment thereof) Notes and the offering contemplated hereby, Guarantees have (i) been prepared by the Company is a “well-known seasoned issuer” as defined in Rule 405 under and the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and Guarantors in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements of the United States Securities Act of 1933, as amended (the "Securities Act") and the rules and regulations (the "Rules and Regulations") of the United States Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; and the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the applicable rules and regulations thereunder. Copies of such registration statement and the amendments thereto have been delivered by the Company to you. As used in this Agreement, "Effective Time" means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Preliminary Prospectus" means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company and the Guarantors with the consent of the Underwriters pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement" means such registration statement, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 5 hereof and deemed to be a part of the registration statement as of the Effective Time, and as amended or supplemented as Time pursuant to paragraph (b) of Rule 430A of the time of the filing of any amendment or supplement thereto, did not Rules and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingRegulations; the Basic and "Prospectus" means such final prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was first filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(dparagraph (1) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d4) of Rule 164); 424(b) of the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under Rules and Regulations. If the Act are satisfied, Company and the Basic Prospectus, other than by reason of Rule 433 Guarantors have filed or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.required
Appears in 1 contract
Samples: Debt Underwriting Agreement (Southern California Microwave Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, The Company and each of the Company and the Guarantors, as applicablejointly and severally, represents and warrants to, and agrees with, the Underwriters thatthat as of the date hereof:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop No order of the Commission preventing or suspending the use of the Basic Prospectus, the any Preliminary Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened issued by the Commission, and the Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act.
(b) The Disclosure Package, as of at the Applicable Time Time, did not, and as of the Closing Date will not, not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall Section 1(b) do not apply to statements or omissions in the Disclosure Package made in reliance upon on and in conformity with information furnished in writing to the Company in writing by or on behalf of the Underwriters expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement Company (including its agents and representatives, other than the Basic Prospectus conformUnderwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Prospectus SupplementSecurities Act) (other than the Preliminary Prospectus, the Prospectus Pricing Term Sheet, the Prospectus, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any amendments other document listed on Schedule IV-A) that constitutes an offer to sell or solicitation of an offer to buy the Registration StatementNotes (each such communication by the Company, an “Issuer Free Writing Prospectus”) without the Basic prior consent of the Underwriters; and any such Issuer Free Writing Prospectus or the use of which has been previously consented to by the Underwriters is set forth substantially in form and substance as attached hereto on Schedule IV-B. Each such Issuer Free Writing Prospectus will conform, complied in all material respects with the requirements of Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act and (to the rules and regulations of extent required thereby) and, when taken together with the Commission thereunder; the Registration StatementPreliminary Prospectus accompanying, as of the Effective Timeor delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as amended or supplemented as of when taken together with the time of Prospectus at the filing of Closing Date will not, contain any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as of the time of the filing thereof, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the representations Company and warranties set forth the Guarantors make no representation and warranty with respect to any statements or omissions made in this paragraph shall each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not apply earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the effective date of the Registration Statement, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished in writing to the Company in writing by such Underwriter through the Underwriters Representative expressly for use therein.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 Prospectus and any amendment or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statementsupplement thereto.
(e) The documents incorporated by reference into in the Registration Statement, the Basic Prospectus, Disclosure Package and the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectusconformed, when such documents were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, Disclosure Package or Prospectus, when such documents are filed with the Commission, will conform, as the case may be, conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied The Company is a corporation duly organized and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation and has the Delaware with full corporate power and authority to carry on own, lease and operate its properties and conduct its business as described in the Registration Statement, the Basic Disclosure Package and the Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its properties, and each is duly qualified and registered as a foreign corporation for the transaction of business and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature character of its the business conducted by it or its ownership the location of the properties owned or leasing of property requires leased by it makes such qualification, qualification or registration necessary (except where the failure to be so qualified qualify or register would not have a Material Adverse Effect (as defined below)). As of December 31, 2013, the Company had an actual capitalization as set forth under the caption “Capitalization” in the Registration Statement, the Disclosure Package and the Prospectus. On the date hereof, all of the issued and outstanding shares of capital stock of the Company have been, and on the Closing Date will be, duly authorized and validly issued and are, and on the Closing Date will be, fully paid and nonassessable. As used herein, “Material Adverse Effect” means a material adverse effect on the businesscondition (financial or otherwise), prospects, financial condition or results of operations operations, business or earnings of Allied the Company and its subsidiariesthe Subsidiaries (as defined below), taken as a whole (a “Material Adverse Effect”)whole.
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. As of the date hereof, each of the Company and the Guarantors, as applicablejointly and severally, represents and warrants to, and agrees with, the Underwriters Initial Purchasers that:
(a) The Registration Statement has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act), and, as of the determination date applicable to the Registration Statement (and any amendment thereof) Preliminary Offering Memorandum and the offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Act; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge after due inquiry, are threatened by the Commission.
(b) The Disclosure Package, as of the Applicable Time did Offering Memorandum do not, and as of the Closing Date any supplement or amendment to them will not, contain an 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, in the light of the circumstances under which they were made, not misleading; the Prospectus, as amended and supplemented, as of the date thereof and as of the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Basic Prospectus or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth contained in this paragraph (a) shall not apply to statements in or omissions made in reliance from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon and in conformity with information relating to the Initial Purchasers furnished in writing to the Company in writing by the Underwriters Initial Purchasers expressly for use therein. No statement stop order preventing the use of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus.
(c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus Preliminary Offering Memorandum or the Prospectus will conformOffering Memorandum, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Basic Prospectus, as any order asserting that any of the time transactions contemplated by this Agreement are subject to the registration requirements of the filing thereofAct, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use thereinhas been issued.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Notes, in each case other than the Basic Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriters, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriters is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes contemplated by the Registration Statement.
(e) The documents incorporated by reference into the Registration Statement, the Basic Prospectus, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each of Allied the Company, its subsidiaries, the Deco Entities and its subsidiaries Turn-Matic has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus Preliminary Offering Memorandum and the Permitted Free Writing Prospectuses, if any, Offering Memorandum and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of Allied and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(g) All outstanding shares of capital stock of Allied and the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(h) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the outstanding shares of capital stock or other equity interests of each of the subsidiaries of Allied have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by Allied, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), except for (i) Liens to be created in connection with the issuance of the Notes, (ii) Liens as otherwise disclosed in the Registration Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and (iii) such other Liens that could not reasonably be expected to have a Material Adverse Effect. Each Subsidiary of the Company (other than Saguaro National Insurance Company, Global Indemnity Assurance Company, Commercial Reassurance Limited and Allied Receivables Funding Incorporated) will be a “Restricted Subsidiary” within the meaning of the Indenture.the
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Samples: Purchase Agreement (Newcor Inc)
