Representations, Warranties and Agreements of the Company and the Guarantors. 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): (a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated. (b) The Preliminary 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 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 a material fact necessary, in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use therein. (c) 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. (d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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) 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. (h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)
Appears in 1 contract
Samples: Purchase Agreement (Ball Corp)
Representations, Warranties and Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors (as of jointly and severally represents, warrants to and agrees with, 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):Initial Purchasers that:
(a) The Preliminary Ofxxxxxx Xxxorandum Company and Offering Memorandum the Guarantors have been prepared by a preliminary offering memorandum dated October 3, 2001 (the Company for use by "PRELIMINARY OFFERING MEMORANDUM") and will prepare an offering memorandum dated the Initial Purchasers date hereof (the "OFFERING MEMORANDUM") setting forth information concerning the Company, the Guarantors, the Securities, the Common Stock and the Registration Rights Agreement, in connection with the Exempt Resaleseach case, in form and substance satisfactory to you. No order or decree preventing the use 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, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary 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 will not as of their its respective dates did notdate, and the Offering Memorandum will not as of the Closing any Delivery Date will not(as defined in Section 2(b)), contain an any untrue statement of a material fact or omit to state 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; provided that, provided, however, that this the Company and the Guarantors make no representation and or warranty shall not apply as to any statements information contained in or omissions made omitted from the Preliminary Offering Memorandum or the Offering Memorandum in reliance upon and in conformity with the written information furnished in writing to the Company by or on the behalf of the Initial Purchasers expressly specifically for use inclusion therein.
(c) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represents, warrants and agrees that:
(a) When the Notes are issued and delivered pursuant to this Agreement, such Notes will not be of the same class as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") or that are quoted in a United States automated inter-dealer quotation system.
(b) Neither the Company nor any of its subsidiaries is, and after giving effect to the offering and sale of the Notes and the application of the net proceeds therefrom as described under the caption "Use of Proceeds" in the Offering Memorandum, will be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended and the rules and regulations of the Commission thereunder.
(c) The Company and each of the Guarantors has all requisite corporate power and authority to enter into the Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by the Company and the Guarantors and, when executed by the Company and the Guarantors in accordance with the terms hereof and thereof, will be validly executed and delivered and (as assuming the due execution and delivery thereof by you), will be the legally valid and binding obligation of the date Company and the Guarantors in accordance with the terms hereof and thereof, enforceable against the Closing DateCompany and the Guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), and, as to rights of indemnification and contribution, by principles of public policy.
(d) represent, warrant and agree as follows (and all of such Assuming that your representations and warranties shall in Section 3(b) are true, the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales), is exempt from the registration requirements of the Act. No form of general solicitation or general advertising was used by the Company, the Guarantors or any of their respective representatives (other than you, as to whom the Company makes no representation), in connection with the offer and sale of the Notes, including, but not limited to, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(e) Set forth on Exhibit B hereto is a list of each employee pension or benefit plan with respect to which the Surviving Corporation or any corporation considered an affiliate of the Surviving Corporation within the meaning of Section 407(d)(7) of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder ("ERISA"), (an "AFFILIATE") will be deemed to include Schmalbacha party in interest or disqualified person after the Merger.
(f) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its date, contains all the information specified in, and all references to meeting the Company in this Section shall xxxxxx xxat requirements of, Rule 144A(d)(4) under the Company has acquired Schmalbach as of the date hereof):Act.
(ag) The Preliminary Ofxxxxxx Xxxorandum Offering Memorandum and Offering Memorandum with respect to the Notes have both been prepared by the Company and the Guarantors for use by the Initial Purchasers Purchaser in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the CompanyCompany or any of the Guarantors, is contemplated.
(bh) The Preliminary Offering Memorandum, Memorandum and 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 their respective dates did not, and the Offering Memorandum as of the Closing Date (as defined below), did not or will not, not at any time contain an untrue statement of a material fact or omit to state a material fact necessary, in order required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, therein not misleading, provided, however, except that this representation and warranty shall does not apply to any 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 Purchaser furnished in writing to the Company in writing by or on behalf of the Initial Purchasers Purchaser expressly for use therein.
(ci) The market-related and industry customer-related data and estimates included under the captions "Summary" and "Business" in the Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates by the Company on or derived from sources which the Company believes to be reliable and accurate in all material respectsreliable.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)
Appears in 1 contract
Samples: Purchase Agreement (Tsi Finance Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (Guarantors, jointly and severally, represent and warrant to the several Initial Purchasers on and 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):Date that:
(a) The Preliminary Ofxxxxxx Xxxorandum When the Securities are issued and Offering Memorandum have been prepared by delivered pursuant to this Agreement, the Securities will not be of the same class (within the meaning of Rule 144A) as securities of the Company for use by or the Initial Purchasers Guarantors that are listed on a national securities exchange registered under Section 6 of the Exchange Act, or that are quoted in connection with the Exempt Resales. No order or decree preventing the use a United States automated inter-dealer quotation system.
(b) Each of the Preliminary Offering Memorandum or and the Offering Memorandum, or any order asserting that as of its respective date, did not, and on the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering MemorandumClosing Date, 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 their respective dates did not, and the Offering Memorandum as of the Closing Date will not, contain an any untrue statement of a material fact or omit to state a material fact necessary, required to be stated therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, provided, however, ; except that this representation and warranty shall does not apply to any 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 Initial Purchasers expressly for use therein.
(c) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws Each of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in 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 conduct its do business and is are in good standing as a foreign corporation corporations in each jurisdiction in which their respective ownership or place where the nature lease of its properties property or the conduct of its business 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 to be have such power or authority would not, singularly or in good standing would not reasonably be expected to the aggregate, have a material adverse effect on the condition (financial conditionor otherwise), business, prospects, properties or results of operations operations, business or prospects of the Company Company, the Guarantors and its subsidiaries, their respective subsidiaries taken as a whole (a "Material Adverse Effect").
(ef) 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's subsidiaries is a corporation duly incorporated Company and validly existing and in good standing under the laws of its state of organization with each Guarantor has full corporate right, power and authority to own, lease execute 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 Agreement, the Securities and the Notes.
Exchange Securities (gcollectively, the "Transaction Documents") Each Guarantor has all requisite corporate power to which it is a party and authority to execute, deliver and perform its obligations under this Agreementhereunder and thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Indenture, the Registration Rights Agreement Transaction Documents to which it is a party and the Guaranteesconsummation 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 and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 of the Guarantors and, upon when duly executed and delivered in accordance with its execution and delivery terms by each of the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasersparties thereto, will constitute the a valid and legally binding agreement of the Company and each Guarantorof the Guarantors, enforceable against the Company and each Guarantor of the Guarantors in accordance with its terms, subject except to (i) the effects of extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent conveyance moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) generally and by 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 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 of the Company and each Guarantor Guarantors and, assuming due authorization, execution when duly executed and delivery delivered in accordance with its terms by each of the Trusteeparties thereto, will constitute the a valid and legally binding agreement of the Company and each Guarantorof the Guarantors, enforceable against the Company and each Guarantor of the Guarantors in accordance with its terms, subject except to (i) the effects of extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent conveyance moratorium 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) generally 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). On the Closing Date, (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 the Indenture will conform to the description thereof in the Offering Memorandum in all material respectsrespects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(lk) The Guarantees to be endorsed on the Series A Notes have been duly authorized by each Guarantor of the Guarantors and, if and when executed the Notes have been duly executed, authenticated, issued and delivered by each Guarantor as provided in accordance with the terms of the Indenture andand paid for as provided herein, 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 a valid and legally binding obligations obligation of each of the Guarantors, entitled to the benefits of the Indenture, enforceable against each of the Guarantors in accordance with their its terms, subject except to (i) the effects of extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent conveyance moratorium 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) generally 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.
(nl) The guarantees to be endorsed on Securities and the Series B Notes (the "Series B Guarantees") will Exchange Securities have been duly authorized by the Company and each Guarantor on or before of the Closing Date Guarantors and, if and when executed duly executed, authenticated, issued and delivered by each Guarantoras provided in the Indenture and, if in the case of the Notes, when paid for as provided herein, will be duly and when the Series B Notes are validly issued and authenticated in accordance with the terms outstanding and will constitute valid and legally binding obligations of the Registration Rights Agreement Company and each of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Company 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 Guarantors in accordance with their terms, subject except to (i) the effects of extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent conveyance moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) generally and by general equitable principles (whether considered in a proceeding in equity or at law).
(m) Each Transaction Document conforms in all material respects to the description thereof contained in the Offering Memorandum.
(n) The execution, delivery and performance by the Company and 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 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) an implied covenant which shall not adversely affect the ability of good faith the Company and fair dealingeach Guarantor to consummate the transactions contemplated by the Transaction Documents.
(o) The Company has all requisite corporate power and authority to enter into There are no contracts, agreements or understandings between the Credit Facilities Company, any Guarantor and any and all person granting such person the right (other agreements and instruments ancillary than rights which have been waived or satisfied) to require the Company or entered into 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 connection with the transactions contemplated securities registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by the Credit Facilities (collectively, Company or any Guarantor under the "Credit Documents")Securities Act.
(p) Each 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 Credit Documents was duly Commission thereunder and validly authorized, executed and delivered by (ii) within the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and binding agreement meaning of Rule 101 of the Company, enforceable against Code of Professional Conduct of the Company 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 its respective terms, subject to (i) generally accepted accounting principles consistently applied throughout the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance periods covered thereby 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 fairly present the financial position of the Company entities purported to be covered thereby at the respective dates indicated and Ball Pan-European Holdingsthe 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", Inc. has all requisite corporate power "Capitalization", "Selected Historical Consolidated Financial Data" and authority to enter into "Management's Discussion and Analysis of Financial Condition and Results of Operations", is derived from 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 accounting records of the Company and its Restricted Subsidiaries (as defined in subsidiaries and such sections of the Offering Memorandum) and other material subsidiaries outstanding prior to Memorandum fairly present the issuance of the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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 information purported to be a Guarantor thereundershown thereby in all material respects. All of the Company's domestic subsidiaries The other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. historical financial and any other Excluded Subsidiaries (as defined statistical information and data included or incorporated by reference in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)are, in all material respects, fairly presented.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. 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 As of the date hereof):, each of the Company and the Guarantors represents and warrants to, and agrees with, the Initial Purchaser that:
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by and the Offering Memorandum do not, and any supplement or amendment to them will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company for use in writing by the Initial Purchasers in connection with the Exempt Resalesexpressly for use therein. No stop order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplatedissued.
(b) The Preliminary Offering Memorandum, the Offering Memorandum and the Company's filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) Each of the Securities Exchange Act of 1934, as amended Allied Waste Industries Inc. (the "Exchange ActALLIED") that are incorporated by reference therein and its subsidiaries has been duly incorporated, is validly existing as of 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 a material fact necessary, in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use therein.
(c) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of its jurisdiction of incorporation and has the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct carry on its business as described in the Preliminary Offering Memorandum and the Offering MemorandumMemorandum and to own, lease and operate its properties, 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 or place where in which the nature of its properties business or the conduct its ownership or leasing of its business property requires such qualification, except where the failure to qualify or to be in good standing so qualified would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties financial condition or results of operations of the Company Allied and its subsidiaries, taken as a whole (a "Material Adverse EffectMATERIAL ADVERSE EFFECT").
(ec) Each 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.
(d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of Allied. All of the Company's outstanding shares of capital stock of each of the subsidiaries is a corporation of Allied have been duly incorporated authorized and validly existing issued and in good standing under the laws of its state of organization with full corporate power are fully paid and authority to own, lease and operate its properties and to conduct its business as presently conductednon-assessable, and is duly qualified to conduct its business are owned by Allied , directly or indirectly through one or more subsidiaries, free and is in good standing as clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such qualification"LIEN"), except where as otherwise disclosed in the failure so Offering Memorandum and except as to qualify or such Liens which could not reasonably be expected to be in good standing does not have a Material Adverse Effect, and each Subsidiary of the Company other than Allied Insurance will be a "RESTRICTED SUBSIDIARY" within the meaning of the Indenture.
(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) 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.
(he) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor of the Guarantors.
(f) The Indenture has been duly authorized by the Company and each of the Guarantors and, assuming due authorizationon the Closing Date, execution will have been validly executed and delivery delivered by the Initial PurchasersCompany and each of the Guarantors. When the Indenture has been duly executed and delivered by the Company and each of the Guarantors, constitutes 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) the effects of applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium, fraudulent conveyance moratorium and other similar laws relating to or affecting creditors' rights generally, and remedies generally and (ii) general principles of equity, including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable principles defenses and limits as to the availability of equitable remedies (whether such principles are considered in a proceeding in equity at law or at lawequity). On the Closing Date, (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 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 Indenture will conform to the description thereof in the Offering Memorandum in all material respects.
(j) The Indenture has been duly authorized by respects to 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 requirements 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" or "TRUST INDENTURE ACT"), is required in connection with and the offer rules and sale regulations 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 Commission applicable to the description thereof in the Offering Memorandum in all material respectsan indenture which is qualified thereunder.
(kg) 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 on 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 hereofClosing Date, 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 . When the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)Notes
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (as of the date hereof Guarantors, jointly and the Closing Date) representseverally, warrant represents and agree as follows (and all of such representations and warranties shall be deemed to include Schmalbachwarrants to, and all references to agrees with, the Company in this Section shall xxxxxx xxat the Company has acquired Schmalbach Underwriters that as of the date hereof)::
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order preventing or decree preventing suspending the use of any Preliminary Prospectus has been issued by the Commission, and the Preliminary Offering Memorandum or Prospectus, at the Offering Memorandumtime of filing thereof, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of complied in all material respects with the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering MemorandumDisclosure Package, at the Offering Memorandum and the Company's filings with the Commission pursuant to Sections 13(a)Applicable Time, 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 their respective dates did not, and the Offering Memorandum as of the Closing Date will not, not contain an any untrue statement of a material fact or omit to state 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, ; provided, however, that the representations and warranties set forth in this Section 1(b) do not apply to statements or omissions in the Disclosure Package made in reliance on and in conformity with information furnished to the Company in writing by or on behalf of the Underwriters expressly for use therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) (other than the Preliminary Prospectus, the 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 other document listed on Schedule IV) that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Company, an “Issuer Free Writing Prospectus”) without the prior consent of the Underwriters; and any such Issuer Free Writing Prospectus 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 complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and when taken together with the Prospectus at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation and warranty shall with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The 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 or on behalf of such Underwriter through the Initial Purchasers Representative expressly for use thereinin the Registration Statement and the Prospectus and any amendment or supplement thereto.
(ce) The market-related and industry data included documents incorporated by reference in the Preliminary Offering Memorandum Registration Statement, the Disclosure Package and the Offering Memorandum are based upon estimates by Prospectus conformed, when such documents were filed with the Company derived from sources which the Company believes to be reliable and accurate Commission, in all material respectsrespects 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 in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(df) The Company is a corporation duly incorporated organized and validly existing and in good standing under the laws of the state State of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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 Delaware 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) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)authority
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (as of the date hereof represents and the Closing Date) represent, warrant and agree as follows (and all of such representations and warranties shall be deemed to include Schmalbachwarrants to, and all references to agrees with, the Company in this Section shall xxxxxx xxat the Company has acquired Schmalbach Initial Purchasers that as of the date hereof)::
(a) The Preliminary Ofxxxxxx Xxxorandum Offering Memorandum, as of its date, and the Offering Memorandum have been prepared by as of the Company for use by date hereof does not, and at the Initial Purchasers Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in connection with the Exempt Resales. No order light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this Section l(a) do not apply to statements or decree preventing the use of omissions in the Preliminary Offering Memorandum or the Offering MemorandumMemorandum made in reliance on and in conformity with information furnished to the Company in writing by or on behalf of the Initial Purchasers expressly for use therein.
(b) Assuming the Notes are issued, or any order asserting that sold and delivered under the transactions circumstances contemplated by the Offering Memorandum and in this Agreement, (i) the registration under the Securities Act of 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 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 subject to exempt from the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(bc) The documents incorporated by reference in the Preliminary Offering Memorandum, the Offering Memorandum and the Company's filings Offering Memorandum when they became effective or were filed with the Commission pursuant Commission, conformed in all material respects to Sections 13(a), 13(c), 14 and 15(d) the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") that are ), 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 therein as of their respective dates did not, and 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 Closing Date 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, will not, contain an untrue statement of a material fact or omit to state a material fact necessary, in order required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use therein.
(c) 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.
(d) The Company is a corporation duly incorporated organized and validly existing and in good standing under the laws of the state State of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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 Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducteddescribed in the Offering Memorandum, and is duly qualified to conduct its and registered as a foreign corporation for the transaction of business and is in good standing as a foreign corporation in each jurisdiction where in which the nature character of its properties the business conducted by it or the conduct location of its business requires the properties owned or leased by it make such qualification, qualification or registration necessary (except where the failure to so to qualify or to be in good standing does register would not have a Material Adverse Effect.
Effect (f) 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 requisite corporate power of the issued and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Notes.
(g) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, constitutes the valid and binding agreement outstanding shares of capital stock of the Company (including the shares of common stock to be issued in the Common Stock Offering and each Guarantor, enforceable against upon conversion of the Company and each Guarantor in accordance with its terms, subject to (iCompany's 7 1/4% Mandatorily Convertible Preferred Stock) 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.
(i) The Registration Rights Agreement has have been duly authorized by the Company and each Guarantor and, upon its execution will be validly issued and delivery by the Company fully paid and each Guarantor and, assuming due authorization, execution nonassessable 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 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 contained in or incorporated by reference in the Offering Memorandum in all Memorandum. As used herein, "Material Adverse Effect" means a material respects.
adverse effect on the condition (j) The Indenture has been duly authorized by the Company and each Guarantorfinancial or otherwise), and upon its execution and delivery by the Company and each Guarantor andresults of operations, assuming due authorizationbusiness, execution and delivery by the Trustee, will constitute the valid and binding agreement earnings or prospects 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying sharesbelow), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that would not reasonably be expected to have taken as a Material Adverse Effectwhole.
(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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (as of the date hereof Guarantors, jointly and the Closing Date) representseverally, warrant represents and agree as follows (and all of such representations and warranties shall be deemed to include Schmalbachwarrants to, and all references to agrees with, the Company in this Section shall xxxxxx xxat the Company has acquired Schmalbach Underwriters that as of the date hereof)::
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order preventing or decree preventing suspending the use of any Preliminary Prospectus has been issued by the Commission, and the Preliminary Offering Memorandum or Prospectus, at the Offering Memorandumtime of filing thereof, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of complied in all material respects with the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering MemorandumDisclosure Package, at the Offering Memorandum and the Company's filings with the Commission pursuant to Sections 13(a)Applicable Time, 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 their respective dates did not, and the Offering Memorandum as of the Closing Date will not, not contain an any untrue statement of a material fact or omit to state 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, ; provided, however, that the representations and warranties set forth in this Section 1(b) do not apply to statements or omissions in the Disclosure Package made in reliance on and in conformity with information furnished to the Company in writing by or on behalf of the Underwriters expressly for use therein.
(c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) (other than the Preliminary Prospectus, the 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 other document listed on Schedule IV-A) that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Company, an “Issuer Free Writing Prospectus”) without the prior consent of the Underwriters; and any such Issuer Free Writing Prospectus 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 complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and when taken together with the Prospectus at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation and warranty shall with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d) The 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 or on behalf of such Underwriter through the Initial Purchasers Representative expressly for use thereinin the Registration Statement and the Prospectus and any amendment or supplement thereto.
(ce) The market-related and industry data included documents incorporated by reference in the Preliminary Offering Memorandum Registration Statement, the Disclosure Package and the Offering Memorandum are based upon estimates by Prospectus conformed, when such documents were filed with the Company derived from sources which the Company believes to be reliable and accurate Commission, in all material respectsrespects 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 in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(df) The Company is a corporation duly incorporated organized and validly existing and in good standing under the laws of the state State of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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 Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducteddescribed in the Registration Statement, the Disclosure Package and the Prospectus, and is duly qualified to conduct its and registered as a foreign corporation for the transaction of business and is in good standing as a foreign corporation in each jurisdiction where in which the nature character of its properties the business conducted by it or the conduct location of its business requires the properties owned or leased by it makes such qualification, qualification or registration necessary (except where the failure to so to qualify or to be in good standing does register would not have a Material Adverse Effect.
Effect (f) The Company has all requisite corporate power and authority to executeas defined below)). As of December 31, deliver and perform its obligations under this Agreement2013, the IndentureCompany had an actual capitalization as set forth under the caption “Capitalization” in the Registration Statement, the Registration Rights Agreement Disclosure Package and the Notes.
(g) Each Guarantor has Prospectus. On the date hereof, all requisite corporate power of the issued and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Registration Rights Agreement and the Guarantees.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, constitutes the valid and binding agreement outstanding shares of capital stock 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), (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 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 Guarantorhave been, 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 andwill be, 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 the Series A Notes have been duly authorized and validly issued and are are, and on the Closing Date will be, fully paid and nonassessable. All As used herein, “Material Adverse Effect” means a material adverse effect on the condition (financial or otherwise), results of the issued shares of the capital stockoperations, partnership, membership business or other equity interest of each subsidiary earnings of the Company are owned directly or indirectly by and the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (iibelow), taken as a whole.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. 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 As of the date hereof):, each of the Company and the Guarantors, jointly and severally, represents and warrants to, and agrees with, the Initial Purchasers that:
(a) The Preliminary Ofxxxxxx Xxxorandum Offering Memorandum, as of its date, and the Offering Memorandum have been prepared by do not, and any supplement or amendment to them will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company for use in writing by the Initial Purchasers in connection with the Exempt Resalesexpressly for use therein. No stop order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplatedissued.
(b) The Preliminary Offering Memorandum, the Offering Memorandum and the Company's filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) Each of the Securities Exchange Act of 1934Company and its subsidiaries has been duly organized, as amended (the "Exchange Act") that are incorporated by reference therein as of 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 a material fact necessary, in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use therein.
(c) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of its jurisdiction of organization and has the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct carry on its business as described in the Preliminary Offering Memorandum and the Offering MemorandumMemorandum and to own, lease and operate its properties, and each is duly qualified to conduct its business and is in good standing as a foreign corporation or limited liability company authorized to do business in each jurisdiction or place where in which the nature of its properties business or the conduct its ownership or leasing of its business property requires such qualification, except where the failure to qualify or to be in good standing so qualified would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties financial condition or results of operations of the Company and its subsidiaries, taken as a whole (a "Material Adverse EffectMATERIAL ADVERSE EFFECT").
(ec) Each All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, 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.
(d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock or membership interests of each of the Company's subsidiaries is a corporation have been duly incorporated authorized and validly existing issued and in good standing are fully paid and nonassessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), except as expressly provided under the laws of its state of organization with full corporate power Credit Agreement and authority to own, lease and operate its properties and to conduct its business as presently conductedthe Sprint PCS Management Agreement, and is duly qualified except for security interests granted to conduct its business and is in good standing as a foreign corporation in each jurisdiction where the nature of its properties or Rural Telephone Finance Cooperative, which will be released on 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 EffectClosing Date.
(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) 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.
(he) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor 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, assuming due authorizationon the Closing Date, execution will have been validly executed and delivery 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) 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.
(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 PurchasersPurchasers as part of a Unit, constitutes the Warrants will be entitled to the benefits of the Warrant Agreement and will be valid and binding obligations of the Company enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Warrants will conform to the description thereof contained in the Offering Memorandum.
(h) The Warrant Shares have been duly and validly 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 valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to terms except as (i) the effects of enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other insolvency or similar laws relating to or affecting creditors' rights generally, generally and (ii) general rights of acceleration and the availability of 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 remedies may be limited by Federal or state securities laws or equitable principles of public policy.
(i) The Registration Rights Agreement has been duly authorized by general applicability. On the Company and each Guarantor andClosing Date, 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 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 Indenture will conform to the description thereof in the Offering Memorandum in all material respects.
(j) The Indenture has been duly authorized by respects to 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 requirements 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" or "TRUST INDENTURE ACT"), is required in connection with and the offer rules and sale regulations 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 Commission applicable to the description thereof in the Offering Memorandum in all material respectsan indenture which is qualified thereunder.
(kj) The Series A Initial Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company Company. When the Initial Notes have been issued, executed and when duly executed authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Company Initial Purchasers in accordance with the terms of the Indenture andthis Agreement as part of a Unit, 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, Notes will have been validly issued and delivered, and will constitute valid and binding obligations of the Company be 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 be 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 their terms except as (i) the effects of enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other insolvency or similar laws relating to or affecting creditors' rights generally, generally and (ii) general rights of acceleration and the availability of equitable remedies may be limited by 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 general applicability. On the Company and Ball Pan-European HoldingsClosing Date, Inc. has all requisite corporate power and authority the Initial Notes will conform 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 description thereof contained in the Offering Memorandum.
(k) and other material subsidiaries outstanding prior to the issuance of the Series A The Exchange Notes have been duly authorized by the Company. When the Exchange Notes are issued, executed and validly issued and are fully paid and nonassessable. All authenticated in accordance with the terms of the issued shares Exchange Offer and the Indenture, the Exchange Notes will be entitled to the benefits of the capital stock, partnership, membership or other equity interest of each subsidiary of Indenture and will be the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free valid and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All binding obligations of the Company's domestic subsidiaries other than , enforceable against the Company in accordance with their terms except as (i) Ball Corporation (a Nevada corporation)the enforceability thereof may be limited by bankruptcy, Ball Glass Containers, Inc., Ball Metal Container Corporation, Ball Technology Licensing Corporation, Heekin Can, Inc., Muncie & Western Railroad Company, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)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. 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 As of the date hereof):, each of the Company and the Guarantors represents and warrants to, and agrees with, the Initial Purchasers that:
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by does not, and any supplement or amendment to it will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company for use in writing by the Initial Purchasers in connection with the Exempt Resalesexpressly for use therein. No stop order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplatedissued.
(b) The Preliminary documents incorporated by reference into the Offering Memorandum, when filed with the Offering Memorandum Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the Company's filings with rules and regulations of 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 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 a material fact necessary, in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use thereinthereunder.
(c) The market-related Each of Allied 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.
(d) The Company its subsidiaries has been duly incorporated, is validly existing as a corporation duly incorporated and validly existing and in good standing under the laws of its jurisdiction of incorporation and has the state of Indiana with all requisite corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandumproperties, 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 or place where in which the nature of its properties business or the conduct its ownership or leasing of its business property requires such qualification, except where the failure to qualify or to be in good standing so qualified would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties financial condition or results of operations of the Company Allied and its subsidiaries, taken as a whole (a "Material Adverse EffectMATERIAL ADVERSE EFFECT").
(ed) Each All outstanding shares of the Company's subsidiaries is a corporation duly incorporated and validly existing and in good standing under the laws capital stock 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 Allied and the Notes.
(g) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 deliveredare fully paid, non-assessable 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, not subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other any preemptive or 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 respectsrights.
(le) The Guarantees to be endorsed entities listed on Schedule B hereto are the Series A Notes have been duly authorized by each Guarantor andonly subsidiaries, if and when executed and delivered by each Guarantor in accordance with the terms direct or indirect, of Allied. All of the Indenture and, assuming due authentication outstanding shares 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 capital stock of each of the Guarantors, entitled to the benefits subsidiaries 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 the Series A Notes Allied have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stocknon-assessable, partnership, membership or other equity interest of each subsidiary of the Company and are owned by Allied, directly or indirectly by the Company (except for directors' qualifying shares)through one or more subsidiaries, free and clear of all liensany security interest, encumbrancesclaim, lien, encumbrance or claimsadverse interest of any nature (each, a "LIEN"), except for those liensLiens (i) to be created in connection with the issuance of the Notes, encumbrances or claims that would (ii) as otherwise disclosed in the Offering Memorandum, and (iii) which could not reasonably be expected to have a Material Adverse Effect.
(t) Other than as disclosed in the Offering Memorandum, and each Subsidiary of the Company does not own capital stock or (other equity interests of any corporation or entity which would be required by the Indenture to than Global Indemnity Assurance and Commercial Reassurance Limited) will be a Guarantor thereunder. All "RESTRICTED SUBSIDIARY" within the meaning of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)Indenture.
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (as of the date hereof and the Closing Date) represent, warrant and agree as follows (and all references to subsidiaries of such representations and warranties the Company shall be deemed to include Schmalbach, Alpha and all references to the Company in this Section shall xxxxxx xxat the Company has acquired Schmalbach its subsidiaries only as of the date hereofClosing Date):
(a) The Neither the Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by nor the Offering Memorandum, as of its respective date (and any amendment or supplement thereto), contains any untrue statement of a material fact or omits to state any material fact necessary 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 information contained in or 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 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 connection with the Exempt ResalesSection 11 hereof. No order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Each of the Preliminary Offering Memorandum and the Offering Memorandum, each as amended or supplemented, as of its date, contains all the information specified in, and meets the requirements of, Rule 144A(d)(4) under the Act.
(c) Each of the Company 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 conduct its business as described in the 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 the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(d) All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(e) As of the date of this Agreement, TSM Acquisition Co. is the only subsidiary of the Company's filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) . As of the Securities Exchange Act Closing Date and after consummation of 1934the transactions contemplated by the Stock Purchase Agreement, the entities listed on Schedule A hereto will be the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the Company’s subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and, except as amended (the "Exchange Act") that are incorporated by reference therein as of their respective dates did not, and described in the Offering Memorandum Memorandum, are, or as of the Closing Date date will notbe, contain an untrue statement owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a material fact or omit to state a material fact necessary, in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, provided, however, that this representation and 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 or on behalf of the Initial Purchasers expressly for use therein“Lien”).
(cf) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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.
(fg) 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.
(gh) 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.
(hi) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor TSM and, assuming due authorizationon the Closing Date, execution will have been duly authorized, executed and delivery delivered by the Initial Purchasers, 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, 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 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 (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' ’ rights generally, generally and (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 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 GuarantorTSM and, 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, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' ’ rights generally, generally and (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 ’s obligations under the Registration Rights Agreement. The Indenture Indenture, when executed and delivered, will conform in all material respects to the description thereof in the Offering Memorandum in all material respectsMemorandum.
(k) The Series A Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company Company. When the Series A Notes have been issued, executed and when duly executed authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Company 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, assuming due authentication, execution and delivery of the Series A Notes by the Trustee delivered in accordance with the terms of Exchange Offer provided for in the IndentureRegistration Rights Agreement, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and 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, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' ’ rights generally, generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law). When issued, (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 the Series A B Notes will conform in all material respects to the description thereof in the Offering Memorandum in all material respectsMemorandum.
(lm) The Guarantees to be endorsed on the Series A Notes by each Guarantor have been duly authorized by each Guarantor TSM and, if on the Closing Date, will have been duly authorized by the Alpha Guarantors and when duly executed and delivered by each Guarantor 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 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 Guarantee of each of the Guarantors, Guarantor endorsed thereon will be entitled to the benefits of the IndentureIndenture 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, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' ’ rights generally, generally and (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 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 each Guarantor on or before the Closing Date Alpha Guarantors, and, if and when issued, will have been duly executed and delivered by each Guarantor, if and when . When the Series B Notes are issued have been issued, executed and authenticated in accordance with the terms of the Registration Rights Agreement and the Indenture, the Series B Guarantees 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 Guarantorof the Guarantors, enforceable against each Guarantor of the Guarantors in accordance with their 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, generally and (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 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 requisite corporate power 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) in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the financial condition or prospects of the Company and authority its subsidiaries, taken as a whole, to enter into which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound or (iii) 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 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 Facilities Facility and any and all other agreements and instruments ancillary to or entered into in connection with the transactions contemplated by the Credit Facilities Facility (collectively, the "“Credit Documents"”).
(p) Each of the Credit Documents was , have been duly and validly authorized, executed and delivered by the Company andand each of the Guarantors. When the Credit Documents have been duly executed and delivered, assuming due authorization, execution and delivery by the other parties thereto, constitutes Credit Documents will constitute the valid and binding agreement of the CompanyCompany and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its their 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, generally and (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 execution, delivery and performance of this Agreement has been duly and validly authorized, executed and delivered the other Operative Documents 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 Guarantors, compliance by the Company and Ball Pan-European Holdings, Inc., enforceable against each of the Company Guarantors with all provisions hereof and Ball Pan-European Holdingsthereof, Inc. in accordance with its termsthe consummation of the transactions contemplated hereby and thereby, subject to 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 effects securities or Blue Sky laws of bankruptcythe various states), insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to except as have been obtained or affecting creditors' rights generallymade, (ii) general equitable principles (whether considered in violate any of the terms or provisions of, or a proceeding in equity default under, the charter or at law) and by-laws of the Company or any of its subsidiaries, (iii) an implied covenant conflict with or constitute a breach of good faith and fair dealing.
(s) All any of the shares terms or provisions of capital stockany indenture, partnershiploan agreement, membership mortgage, lease or other equity interest of agreement or instrument that is material to the Company and its Restricted Subsidiaries (subsidiaries, taken as defined in a whole, to which the Offering Memorandum) and other material Company or any of its subsidiaries outstanding 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 issuance 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 Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All imposition or creation of (or the issued shares of the capital stockobligation to create or impose) a Lien under, partnership, membership any agreement or other equity interest of each subsidiary of instrument to which the Company are owned directly or indirectly 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 Company Credit Facility, and, in the case of clauses (except for directors' qualifying sharesi), free (iii), (iv) and clear of all liens, encumbrances, or claims(v), except for those liensany such violations, encumbrances or claims conflicts, breaches and defaults that would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.
(ts) Other than as disclosed in The Company and each of the Offering MemorandumGuarantors are, and immediately after the consummation of the Transactions, will be Solvent. As used herein, the Company term “Solvent” 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 own capital stock intend to incur, or other equity interests of any corporation or entity which would be required by the Indenture believe (nor should it reasonably believe) that it will incur, debts beyond its ability to be a Guarantor thereunder. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (pay such debts as defined in the Offering Memorandum (the "Excluded Subsidiaries") 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 facts 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. The Company and each of the Guarantors (jointly and severally represent and warrant to, and agree with, the several Initial Purchasers on and as of the date hereof and the Closing DateDate (as defined in Section 3) 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):that:
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use Each of the Preliminary Offering Memorandum or and the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary 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 their its respective dates date, did not, and on the Closing Date the Offering Memorandum as of the Closing Date will not, contain an any untrue statement of a material fact or omit to state a material fact necessary, required to be stated therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, provided, however, ; provided that this the Company and the Guarantors make no representation and or warranty shall not apply as to any statements information contained in or omissions made omitted from the Preliminary Offering Memorandum or the Offering Memorandum in reliance upon and in conformity with written information relating to the Initial Purchasers furnished in writing to the Company by or on behalf of the any Initial Purchasers expressly Purchaser specifically for use thereintherein (the "Initial Purchasers' Information").
(cb) 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.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws Each of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or respective date, contains all of the conduct information that, if requested by a prospective purchaser of its business requires such qualificationthe Securities, except where the failure to qualify or would be required to be in good standing would not reasonably be expected provided to have a material adverse effect on such prospective purchaser pursuant to Rule 144A(d)(4) under the financial condition, business, prospects, properties or results of operations of the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect")Securities Act.
(ec) Each Assuming the accuracy of the Company's subsidiaries is a corporation duly incorporated representations and validly existing and in good standing under the laws warranties 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) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial PurchasersPurchasers contained in Section 2 and their compliance with the agreements set forth therein, constitutes the valid and binding agreement of the Company and each Guarantorit is not necessary, 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), (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 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 issuance 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 Securities to the description thereof in Initial Purchasers and 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 andoffer, assuming due authentication, execution resale and delivery of the Series A Notes Securities 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 manner contemplated 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 this 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that would not reasonably be expected to have a Material Adverse Effect.
(t) Other than as disclosed in the Offering Memorandum, to register the Company does not own capital stock Securities under the Securities Act or other equity interests of any corporation or entity which would be required by the Indenture to be a Guarantor thereunder. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded Subsidiaries") and (ii)qualify the
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors (represent and warrant to, and agree with, the Initial Purchaser on and 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):Date that:
(a) The Preliminary Ofxxxxxx Xxxorandum and Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements as of the Securities Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary 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 their respective dates did date hereof does not, and the Offering Memorandum as of on the Closing Date will not, contain an any untrue statement of a material fact or omit to state a material fact necessary, required to be stated therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, provided, however, ; provided that this the Company and the Guarantors make no representation and or warranty shall not apply as to any statements information contained in or omissions made omitted from the 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 Initial Purchasers expressly Purchaser specifically for use thereintherein (the "Initial Purchaser's Information").
(b) The Offering Memorandum, as of the date hereof, 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.
(c) The market-related Assuming the accuracy of the representations and industry data included warranties of the Initial Purchaser contained in Section 2 and its compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchaser and the offer, resale and delivery of the Securities by the Initial Purchaser in the Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates manner contemplated by the Company derived from sources which the Company believes to be reliable and accurate in all material respects.
(d) The Company is a corporation duly incorporated and validly existing and in good standing under the laws of the state of Indiana with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Offering Memorandum this Agreement and the Offering Memorandum, and is duly qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction register the Securities under the Securities Act or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the financial condition, business, prospects, properties or results of operations of 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) 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.
(h) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor and, assuming due authorization, execution and delivery by the Initial Purchasers, 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, 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 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 Trust 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 DocumentsAct").
(pd) Each NFC Castings, Inc., a Delaware corporation ("Holdings") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Credit Documents was duly State of Delaware and validly authorized, executed and delivered by the Company andand each of the Company's subsidiaries have been duly incorporated and are validly existing as corporations under the laws of the state of their respective organization, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and binding agreement each of the Company, enforceable against the Company in accordance with its respective termsHoldings, 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 each of the Company Company's subsidiaries are duly qualified to do business and Ball Pan-European Holdingsare 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, Inc. has and have all requisite corporate power and authority necessary to enter into own or hold their respective properties and to conduct the Acquisition Agreement businesses in which they are engaged and any and all other agreements, side letters and instruments ancillary to or entered into in connection with take the actions necessary to consummate each of the transactions contemplated by the Acquisition Agreement.
(r) The Acquisition this 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 the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued shares of the capital stock, partnership, membership or other equity interest of each subsidiary of the Company are owned directly or indirectly by the Company (except for directors' qualifying shares), free and clear of all liens, encumbrances, or claims, except for those liens, encumbrances or claims that 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. All of the Company's domestic subsidiaries other than (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, Ball Asia Servxxxx Ximited, Ball Glass Container Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser Communications International L.L.C., Space Operations International, L.L.C. and any other Excluded Subsidiaries (as defined in the Offering Memorandum (the "Excluded SubsidiariesTransactions") ), 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, 3 3 business or prospects of the Company and its subsidiaries taken as a whole (iia "Material Adverse Effect").
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