Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent, warrant and agree as follows: (a) When the Notes and Guarantees are issued and delivered pursuant to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company or the Guarantors that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system. (b) Neither the Company nor any subsidiary of the Company is or, after giving effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and 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) Assuming the accuracy of your representations and warranties in Section 3(b), the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales) are exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising within the meaning of Regulation D (including, but not limited to, advertisements, 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) was used by the Company, the Guarantors, or any person acting on behalf of the Company or the Guarantors (other than you, as to whom the Company and the Guarantors make no representation) in connection with the offer and sale of the Notes. (d) No directed selling efforts within the meaning of Rule 902 under the Securities Act were used by the Company, the Guarantors, any affiliate of the Company or the Guarantors or any person acting on behalf of the Company or the Guarantors (other than you, as to whom the Company and the Guarantors make no representation) with respect to Notes sold outside the United States to Non-U.S. Persons, and the Company and any person acting on its behalf (other than you, as to whom the Company and the Guarantors make no representation) has complied with and will implement the “offering restrictions” required by Rule 902 under the Securities Act. (e) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, each as of its respective date, contains all the information specified in, and meeting the requirements of, Rule 144A(d)
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent, warrant and agree as follows:
(a) When the Notes and the Guarantees are issued and delivered pursuant to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company or the Guarantors that are listed on a national securities exchange registered under Section 6 of the United States 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 subsidiary of the Company is orits subsidiaries is, or after giving effect to the offer offering and sale of the Notes and the upon application of the proceeds therefrom as described under “the caption "Use of Proceeds” " in each of the Pricing Disclosure Package and the Offering MemorandumMemorandum will be, 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) Assuming the accuracy of that your representations and warranties in Section 3(b)) are true, the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales) are is exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising within the meaning of Regulation D (including, but not limited to, advertisements, 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) was used by the Company, the Guarantors, Guarantors or any person acting on behalf of the Company or the Guarantors their respective representatives (other than you, as to whom the Company and the Guarantors make no representation) in connection with the offer and sale of the Notes.
(d) No directed selling efforts within the meaning form of Rule 902 under the Securities Act were general solicitation or general advertising was used by the Company, the Guarantors, any affiliate of the Company or the Guarantors or any person acting on behalf of the Company or the Guarantors their respective representatives (other than you, as to whom the Company and the Guarantors make no representation) with respect to Notes sold outside the United States to Nonnon-U.S. Personspersons (as defined in Rule 902 under the Act), by means of any directed selling efforts within the meaning of Rule 902 under the Act, and the Company, any affiliate of the Company and any person acting on its or their behalf (other than you, as to whom when the Company and the Guarantors make no representation) has complied with and will implement the “"offering restrictions” " required by Rule 902 under the Securities Act902.
(e) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package Memorandum and the Offering Memorandum, each as amended or supplemented, as of its respective date, contains all the information specified in, and meeting the requirements ofof Rule 144A(d)(4) under the Act.
(f) The Preliminary Offering Memorandum and Offering Memorandum have been prepared by the Company and the Guarantors 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, Rule 144A(d)or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of the Company or any of the Guarantors is contemplated.
(g) The Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as of their respective dates, and the Offering Memorandum as of the Closing Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum and Offering Memorandum made in reliance upon and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by or on behalf of the Initial Purchasers expressly for use therein.
(h) The market-related and customer-related data and estimates included under the captions "Summary" and "Business" in the Preliminary Offering Memorandum and the Offering Memorandum are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.
Appears in 1 contract
Samples: Purchase Agreement (NRG Energy Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent, warrant and agree as follows:
(a) When the Notes and the Guarantees are issued and delivered pursuant to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company or the Guarantors that are listed on a national securities exchange registered under Section 6 of the United States 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 subsidiary of the Company is orits subsidiaries is, or after giving effect to the offer offering and sale of the Notes and the upon application of the proceeds therefrom as described under “the caption "Use of Proceeds” " in each of the Pricing Disclosure Package and the Offering MemorandumCircular will be, 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) Assuming the accuracy of that your representations and warranties in Section 3(b)) are true, the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resales) are is exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising within the meaning of Regulation D (including, but not limited to, advertisements, 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) was used by the Company, the Guarantors, Guarantors or any person acting on behalf of the Company or the Guarantors their respective representatives (other than you, as to whom the Company and the Guarantors make no representation) in connection with the offer and sale of the Notes.
(d) No directed selling efforts within the meaning form of Rule 902 under the Securities Act were general solicitation or general advertising was used by the Company, the Guarantors, any affiliate of the Company or the Guarantors or any person acting on behalf of the Company or the Guarantors their respective representatives (other than you, as to whom the Company and the Guarantors make no representation) with respect to Notes sold outside the United States to Nonnon-U.S. Personspersons (as defined in Rule 902 under the Act), by means of any directed selling efforts within the meaning of Rule 902 under the Act, and the Company, any affiliate of the Company and any person acting on its or their behalf (other than you, as to whom when the Company and the Guarantors make no representation) has complied with and will implement the “"offering restrictions” " required by Rule 902 under the Securities Act902.
(e) Each of the Preliminary The Offering MemorandumCircular, the Pricing Disclosure Package and the Offering Memorandumas amended or supplemented, each as of its respective date, contains all the information specified in, and meeting the requirements of, of Rule 144A(d)
Appears in 1 contract
Samples: Purchase Agreement (NRG Energy Inc)
Representations, Warranties and Agreements of the Company and the Guarantors. The Each of the Company and each of the Guarantors, jointly and severally, represent, warrant and agree agree, on and as of the date hereof, as follows:
(a) When The Offering Memorandum and Consent Solicitation Statement, dated November 15, 2011, as supplemented by Supplement No. 1 thereto (collectively, and together with the documents incorporated by reference therein, the “Offering Memorandum”), together with the form of Indenture attached hereto as Exhibit I, the forms of Security Documents attached hereto as Exhibit II, the form of Intercreditor Agreement attached hereto as Exhibit III and the form of Registration Rights Agreements attached hereto as Exhibit IV, (collectively, the “Disclosure Package”), contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act of 1933 (the “Securities Act”).
(b) The Notes and Note Guarantees are issued and delivered pursuant to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A 144A(d)(3) under the Securities Act) as securities of the Company or the Guarantors that are listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934 (the “Exchange Act”) or that are quoted in a United States automated inter-dealer quotation system.
(bc) Neither the Company nor any subsidiary None of the Company is oror the Guarantors is, and after giving effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering MemorandumTransactions, none will be 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.
(cd) Assuming the accuracy of your representations The offer and warranties in Section 3(b), the purchase and resale sale of the Purchased Notes pursuant hereto (including hereto, and of the Exchange Notes pursuant to the Exempt Resales) Offering Memorandum (the “Exchange Offer”), are exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act (including, but not limited to, advertisements, 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) was used by the Company, Company or the Guarantors, any of their respective Affiliates or any person acting on behalf of the Company or the Guarantors (other than you, as to whom the Company and the Guarantors make no representation) their representatives in connection with the offer and sale of the Notes.
(de) No directed selling efforts within the meaning of Rule 902 under the Securities Act were used by the Company, the Guarantors, any affiliate of the Company or the Guarantors or any person acting on behalf of the Company or the Guarantors (other than you, as to whom the Company and the Guarantors make no representation) their respective representatives with respect to Notes sold outside the United States to Nonnon-U.S. Personspersons, and the Company and the Guarantors and any of their respective Affiliates and any person acting on its their behalf (other than you, as to whom the Company and the Guarantors make no representation) has complied with and will implement the “offering restrictions” required by Rule 902 under the Securities Act.
(ef) The Disclosure Package has been prepared by the Company and the Guarantors for use in connection with the issuance of the Notes and the Exchange Offer. No other materials have been prepared by the Company or the other Guarantors for use in connection with the issuance of the Notes. No order or decree preventing the use of the Disclosure Package, or any order asserting that the Transactions 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 or the Guarantors, is contemplated.
(g) As of the date hereof, the Disclosure Package does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) The statistical and market-related data included in or incorporated by reference into the Disclosure Package are based on or derived from sources that the Company and the Guarantors believe to be reliable in all material respects.
(i) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package Company and the Offering MemorandumGuarantors and their respective subsidiaries has been duly organized, each is validly existing and in good standing as a corporation or limited liability company, as applicable, under the laws of its respective date, contains all the information specified in, jurisdiction of organization and meeting the requirements of, Rule 144A(d)is duly qualified to do business and in good standing as a corporation or limited liability
Appears in 1 contract
Representations, Warranties and Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, severally represent, warrant and agree as followsthat:
(a) When the Notes A registration statement on Form S-1, and Guarantees are issued amendments Xx. 0, Xx. 0, Xx. 0 and delivered pursuant No. 4 thereto, with respect to this Agreement, such Notes and Guarantees will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company or the Guarantors that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(b) Neither the Company nor any subsidiary of the Company is or, after giving effect to the offer and sale of the Notes and the application Guarantees have (i) been prepared by the Company and the Guarantors in conformity with the requirements of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Offering Memorandum, will be an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company United States Securities Act of 19401933, as amended, amended (the "Securities Act") and the rules and regulations (the "Rules and Regulations") of the United States Securities and Exchange Commission (the "Commission") thereunder.
, (cii) Assuming been filed with the accuracy of your representations Commission under the Securities Act and warranties in Section 3(b), the purchase and resale of the Notes pursuant hereto (including pursuant to the Exempt Resalesiii) are exempt from the registration requirements of become effective under the Securities Act; and the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the applicable rules and regulations thereunder. No form Copies of general solicitation or general advertising within such registration statement and the meaning amendments thereto have been delivered by the Company to you. As used in this Agreement, "Effective Time" means the date and the time as of Regulation D (including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radiowhich such registration statement, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) the most recent post-effective amendment thereto, if any, was used declared effective by the Company, Commission; "Effective Date" means the Guarantorsdate of the Effective Time; "Preliminary Prospectus" means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any person acting on behalf of prospectus filed with the Company or the Guarantors (other than you, as to whom Commission by the Company and the Guarantors make no representation) in connection with the offer and sale consent of the Notes.
Underwriters pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement" means such registration statement, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 5 hereof and deemed to be a part of the registration statement as of the Effective Time pursuant to paragraph (db) No directed selling efforts within the meaning of Rule 902 under the Securities Act were used by the Company, the Guarantors, any affiliate 430A of the Company Rules and Regulations; and "Prospectus" means such final prospectus, as first filed with the Commission pursuant to paragraph (1) or the Guarantors or any person acting on behalf (4) of Rule 424(b) of the Company or the Guarantors (other than you, as to whom Rules and Regulations. If the Company and the Guarantors make no representation) with respect to Notes sold outside the United States to Non-U.S. Persons, and the Company and any person acting on its behalf (other than you, as to whom the Company and the Guarantors make no representation) has complied with and will implement the “offering restrictions” required by Rule 902 under the Securities Act.
(e) Each of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum, each as of its respective date, contains all the information specified in, and meeting the requirements of, Rule 144A(d)have filed or are required
Appears in 1 contract
Samples: Debt Underwriting Agreement (Southern California Microwave Inc)
