REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The ------------------------------------------------------------------ Company represents and warrants to you, and agrees with you, that as of the Commencement Date and at all times on or prior to date when the Exchange Offer is consummated (the "Closing Date"): (a) the Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Company's knowledge, threatened by the Commission; (i) the Exchange Offer Materials, including the Registration Statement, the Schedule 13E-4 and the Prospectus, comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, the Exchange Act and the Trust Indenture Act, and the applicable rules and regulations of the Commission thereunder; (ii) the Registration Statement, when it became effective, did not contain and as amended or supplemented, if applicable, 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 not misleading; and (iii) none of the other Exchange Offer Materials or the Prospectus contains, and, as amended or supplemented, if applicable, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 8(b) do not apply (A) to statements or omissions in the Exchange Offer Materials based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee under the Indenture. (c) the Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture and the Notes and to consummate the Exchange Offer; (d) the Exchange Offer, this Agreement and all other actions by the Company contemplated in the Exchange Offer Materials and this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, and no other corporate proceedings by the Company are necessary to authorize any such actions; (e) this Agreement has been duly and validly executed and delivered by the Company and is a legal, valid and binding obligation of the Company; (f) the Prospectus as amended or supplemented in relation to the Exchange Offer has been filed with the Commission pursuant to Rule 424(b), if required, within the applicable time period prescribed for such filing by the rules and regulations under the Act; (g) the Exchange Agent Agreement and Information Agent Agreement are, or will be within two (2) business days of the Commencement Date, in full force and effect; (h) the Indenture has been duly authorized by the Company, has been duly qualified under the Trust Indenture Act, and assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable in accordance with its terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); (i) the Notes to be issued pursuant to the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Exchange Offer, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Notes will conform in all material respects to the description thereof contained in the Prospectus; (j) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (k) each subsidiaries of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (l) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus; (m) the shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non-assessable; (1) the shares of Common Stock initially issuable upon conversion of the Debentures (the "Shares") have been duly authorized and, when issued and delivered in accordance with the terms of the Notes, will be validly issued, fully paid and non-assessable, and the issuance of such shares is not subject to any preemptive or similar rights and (2) the Rights, if any, issuable upon conversion of the Debentures have been duly authorized and, when and if issued upon conversion in accordance with the terms of the Indenture and the Rights Agreement, will have been validly issued; (o) the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, the Exchange Offer, the issuance and delivery by the Company of the Notes pursuant to the Exchange Offer and consummation of the Exchange Offer, and the fulfillment of the terms hereof and thereof, do not and will not contravene, violate, conflict with, result in the breach of, or constitute a default under (i) any provision of applicable law or regulation; (ii) the certificate of incorporation or by-laws of the Company; (iii) any agreement or other instrument binding upon the Company or any of its subsidiaries; or (iv) any judgment, determination, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries other than, in the case of clauses (i), (iii) and (iv), any such contravention, violation, conflict, breach, or default that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the ability of the Company to perform its obligations hereunder or thereunder and commence and consummate the Exchange Offer; no consent, approval, authorization, permit or order of, or the qualification with, the Commission or any Other Agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, the Exchange Offer, the issuance and delivery of the Notes pursuant to the Exchange Offer and the consummation of the Exchange Offer, except (i) such as have been made or will be made when required as contemplated hereby under the Securities Act, the Exchange Act and the Trust Indenture Act, (ii) such filings and notifications with or to the NYSE as have been made or will be made when required, and (iii) such as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S. jurisdictions, in each case, in connection with the Exchange Offer; (p) there has not occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement); (q) there are no legal or governmental proceedings pending or, to the Company's knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described, other than such proceedings that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries taken as a whole, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required; (r) each of the Company and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (s) the Company is not, and after giving effect to the consummation of the Exchange Offer, will not be an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended; (t) there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to include such securities with the Notes registered pursuant to the Registration Statement; (u) each of the Company and its subsidiaries is (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; (v) except as disclosed in the Prospectus, each of the Company and its subsidiaries owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names necessary to the conduct of the business as now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, would have a material adverse effect on the Company and its subsidiaries, taken as a whole; and (w) each document filed or to be filed under the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Dealer Manager Agreement (Silicon Graphics Inc /Ca/)
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The ------------------------------------------------------------------ Company represents and warrants to you, and agrees with you, that (i) on and as of the Commencement Date and at all times date on or prior to date when which the Exchange Offer is consummated first commenced (the "Closing Commencement ------------ Date"):
), (aii) on and as of the Registration Statement has become effective; no stop order suspending the effectiveness effective date of the Registration Statement is in effect(the ---- "Effective Date"), and no proceedings (iii) as of the date that the Old Securities are accepted -------------- for such purpose are pending before orexchange (the "Acceptance Date"), to the Company's knowledge, threatened by the Commission;that: ---------------
(i) the Exchange Offer Materials, including the The Registration Statement, the Schedule 13E-4 Statement and the Prospectus, comply andand any supplements or amendments thereto, as amended or supplemented, if applicable, complied and will comply in all material respects with the provisions of the Securities Act, the Exchange Act and of the Trust Indenture ActAct of 1939, as amended, and the applicable rules and regulations of the Commission thereunder; thereunder (collectively, the "Trust Indenture Act"), (ii) and the Registration StatementExchange ------------------- Offer Documents, and any amendments or supplements, when it became effectivemailed or furnished to holders of Old Securities, did complied and will comply in all material respects with the provisions of the Securities Act and the Exchange Act.
(b) The Exchange Offer Documents at all such times do not and will not contain and as amended or supplemented, if applicable, will not contain, any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the other Exchange Offer Materials or the Prospectus contains, and, as amended or supplemented, if applicable, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 8(b) do not apply (A) to statements or omissions in the Exchange Offer Materials based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee under the Indenture.
(c) No restraining order has been issued or, proceedings or litigation initiated, or to the Company Company's knowledge, threatened, and no investigation has been initiated or, to the corporate power Company's knowledge, threatened, with respect to the Exchange Offer, the issuance of the New Securities in exchange for the Old Securities pursuant to the provisions of the Exchange Offer or the execution, delivery and authority to execute, deliver and perform its obligations under performance of this Agreement, the New Indenture or the Supplemental Indenture, in any case, by or before the Commission or any Other Agency. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending or, to the Notes and to consummate the Exchange Offer;
(d) the Exchange OfferCompany's knowledge, this Agreement and all other actions contemplated by the Company contemplated in Commission. No stop order suspending the Exchange Offer Materials and this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, and no other corporate proceedings by the Company are necessary to authorize any such actions;
(e) this Agreement has been duly and validly executed and delivered by the Company and is a legal, valid and binding obligation issuance or exchange of the Company;
(f) the Prospectus as amended or supplemented in relation New Securities pursuant to the Exchange Offer has been filed with issued and no proceedings for that purpose are pending or, to the Company's knowledge, are contemplated, and any request of the Commission pursuant for additional information (to Rule 424(b), if required, within be included in the applicable time period prescribed for such filing by Registration Statement or in the rules and regulations under the Act;Prospectus or otherwise) has been (or will be) complied with or otherwise satisfied.
(gd) the Exchange Agent Agreement and Information Agent Agreement are, or will be within two (2) business days Each of the Commencement Date, Company and its subsidiaries (as such term is defined in full force and effect;
(h) the Indenture has been duly authorized by the Company, has been duly qualified under the Trust Indenture Act, and assuming due authorization, execution and delivery Rule 1-02 of the Indenture by the Trustee, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable in accordance with its terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity);
(i) the Notes to be issued Regulation S-X promulgated pursuant to the Exchange Offer have been Securities Act) (each, a "subsidiary") is a company duly authorizedorganized, and, assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Exchange Offer, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Notes will conform in all material respects to the description thereof contained in the Prospectus;
(j) the Company has been duly incorporated, is validly existing as a corporation and in good ---------- standing under the laws of the State its jurisdiction of Delaware, has the corporate formation with full power and authority (corporate or other) to own its property properties and to conduct its business as presently conducted as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that where the failure to be so qualified or to be in good standing standing, either singly or in the aggregate, would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;.
(ke) each subsidiaries of the The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the all necessary corporate power and authority (i) to own its property enter into and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(l) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(m) the shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non-assessable;
(1) the shares of Common Stock initially issuable upon conversion of the Debentures (the "Shares") have been duly authorized and, when issued and delivered in accordance with the terms of the Notes, will be validly issued, fully paid and non-assessable, and the issuance of such shares is not subject to any preemptive or similar rights and (2) the Rights, if any, issuable upon conversion of the Debentures have been duly authorized and, when and if issued upon conversion in accordance with the terms of the Indenture and the Rights Agreement, will have been validly issued;
(o) the execution and delivery by the Company of, and the performance by the Company of perform its obligations under this Agreement, (ii) subject to obtaining stockholder approval, to enter into and perform its obligations under the New Indenture, and (iii) subject to obtaining stockholder approval, to deliver the New Securities in exchange for the Old Securities pursuant to the terms of the Exchange Offer.
(f) Subject to obtaining Consents to the Proposed Amendments from holders of at least the required amount of Old Securities outstanding as described in the Prospectus, the Company has all necessary corporate power and authority to enter into and perform its obligations under the Supplemental Indenture.
(g) Assuming, as of the Commencement Date only, Consents to the Proposed Amendments are received from holders of at least the required amount of Old Securities outstanding as described in the Prospectus (the "Requisite --------- Holders"), and assuming, as of the Commencement Date only, satisfaction of the ------- other conditions to the execution of the Supplemental Indenture described in the Prospectus, including obtaining the consents of the Company's lenders described therein, and upon obtaining stockholder approval as set forth in the Prospectus, the execution, performance and delivery of this Agreement, the New Indenture and the NotesSupplemental Indenture, the issuance of the New Securities pursuant to the provisions of the Exchange Offer, and the consummation of the Exchange Offer do not and will not: (i) conflict with or constitute a breach of, or a default (with the passage of time or otherwise) under, or (ii) result in the imposition of a lien on any properties of the Company or any of its subsidiaries or (iii) an acceleration of indebtedness pursuant to, the charter or bylaws of the Company or any of its subsidiaries, or any material bond, debenture, note or any other evidence of material indebtedness or any material indenture, (including the Old Indenture) mortgage, deed of any of its subsidiaries is a party or by which any of them is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject. No consent, approval, authorization or other order of any governmental or regulatory agency, including the Commission and any Other Agency, is legally required for the issuance and delivery by the Company of the Notes New Securities pursuant to the Exchange Offer and the execution of the New Indenture and the Supplemental Indenture other than (i) consents, approval, authorizations or other orders that have been received or will be received on or prior to the consummation of the Exchange Offer, and (ii) Consents to the fulfillment Proposed Amendments from the Requisite Holders.
(h) The accountants who have certified or shall certify the financial statements of the terms hereof Company filed or to be filed with the Commission as part of the Registration Statement and thereof, do not the Prospectus or incorporated by reference therein are independent accountants as required by the Securities Act and will not contravene, violate, conflict with, result in the breach of, or constitute a default under Exchange Act.
(i) any provision This Agreement has been duly authorized and this Agreement has been validly executed and delivered by the Company and constitutes the legal, valid and binding agreement of applicable the Company, enforceable against it in accordance with its terms except to the extent that (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or other similar laws affecting creditors rights generally or by general principles of equity whether asserted in an action at law or regulation; in equity and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws, including the certificate of incorporation or by-laws public policies underlying such laws.
(j) The consolidated historical financial statements of the Company; (iii) any agreement or other instrument binding upon , and the Company or any of its subsidiaries; or (iv) any judgmentrelated notes and schedules, determination, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries other than, included in the case Registration Statement and Prospectus complied and will comply in all material respects with the requirements of clauses (i), (iii) the Securities Act and (iv), any such contravention, violation, conflict, breach, or default that individually or in the aggregate would not have a material adverse effect on Exchange Act and presented and will present fairly the consolidated financial position of the Company and its consolidated subsidiaries, taken as of the dates indicated, and the results of its operations and the changes in its financial position for the periods therein specified. Such historical consolidated financial statements (including the related notes and schedules), have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods therein specified except, in each case, as disclosed in information included in the Prospectus. The other historical financial information and statistical data set forth in the Prospectus, in each case including the accompanying notes, are prepared on a wholebasis consistent with the relevant historical consolidated financial statements of the Company.
(k) The pro forma financial statements set forth in the Prospectus have been prepared to give effect to assumptions made on a reasonable basis, or historical transactions and proposed transactions such as are fully and accurately described in the Prospectus, and the pro forma adjustments have been properly applied on the ability of the Company to perform its obligations hereunder or thereunder and commence and consummate the Exchange Offer; no consent, approval, authorization, permit or order of, or the qualification with, the Commission or any Other Agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, bases described therein.
(l) In connection with the Exchange Offer, the issuance Company has complied, and delivery of the Notes pursuant will continue to comply at all times prior to the Exchange Offer and the consummation expiration of the Exchange Offer, except (i) such as have been made or will be made when required as contemplated hereby under with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act.
(m) (i) The Supplemental Indenture will have been duly authorized by the Company on the Acceptance Date and may be entered into upon obtaining the Consents to the Proposed Amendments from the Requisite Holders, and (ii) such filings and notifications with or assuming satisfaction of the conditions to the NYSE execution of the Supplemental Indenture as described in the Prospectus and assuming the due authorization, execution and delivery of the Supplemental Indenture by the Old Trustee, upon execution and delivery of the Supplemental Indenture (A) the Supplemental Indenture will have been made or effected the Proposed Amendments to the Old Indenture, (B) the Old Indenture as modified by the Supplemental Indenture will be made when requiredthe legal, valid and binding obligation of the Company, (C) the Old Securities not exchanged will remain legal, valid and binding obligations of the Company entitled to the benefits of the Old Indenture as so modified, and (iiiD) such the Old Indenture as so modified will be, and the Old Securities outstanding thereunder will remain, enforceable in accordance with their respective terms, except to the extent limited by bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity.
(n) Upon obtaining stockholder approval, the New Indenture will be duly authorized and, when executed and delivered by the Company, will be a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms except to the extent that the same may be required limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity, whether asserted in an action at law or in equity. The New Indenture conforms in all material respects to the securities or Blue Sky laws requirements of, and is qualified under, the Trust Indenture Act.
(o) Upon obtaining stockholder approval, the New Securities will be duly authorized and, when executed, authenticated and delivered in accordance with the terms of the various states New Indenture, will be the legal, valid and binding obligations of the Company entitled to the benefits of the New Indenture and enforceable against the Company in accordance with their terms except to the extent that the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or the securities other laws now or hereafter in effect relating to creditors' rights generally or by general principles of non-U.S. jurisdictionsequity, whether asserted in each case, an action at law or in connection with the Exchange Offer;equity.
(p) Subsequent to the dates as of which information is given in the Registration Statement and the Prospectus and through the Exchange Date, none of the Company nor any of its subsidiaries has incurred or will have incurred any material liabilities or obligations direct or contingent, or has entered into or will enter into any material transactions, not in the ordinary course of business, except transactions disclosed in or contemplated by the Registration Statement or the Prospectus, and, except as disclosed in or contemplated by the Registration Statement or the Prospectus, there has not occurred been and will not have been any material change in the capital stock or long-term indebtedness of the Company or any of its subsidiaries or any payment of or declaration to pay any dividends or any other distribution with respect to the Company's capital stock, or any material adverse change change, or any development involving a prospective material adverse change change, in the condition, financial or otherwise, or in the earnings, business business, or operations or business prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement);.
(q) there are no legal or governmental proceedings pending orThe Exchange Offer, the Proposed Amendments, the New Securities, the New Indenture, the Old Securities, the Old Indenture and the Supplemental Indenture conform, in all material respects to the Company's knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described descriptions thereof in the Registration Statement or the Prospectus and are not so described, other than such proceedings that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries taken as a whole, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required;Exchange Offer Documents.
(r) each of the The Company is not and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would will not have a material adverse effect on the Company and its subsidiaries, taken be as a whole;
(s) the Company is not, and after giving effect to result of the consummation of the Exchange Offer, will not be (i) an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in under the Investment Company Act of 1940, as amended;, and the rules and regulations promulgated by the Commission thereunder, or (ii) a "holding company" within the meaning of, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended, and the rules and regulations promulgated by the Commission thereunder or directly or indirectly controlled by or acting on behalf of any person which is an investment company or holding company.
(s) Upon completion of the rights offering, the Company has or will have sufficient funds available, and has or will have sufficient authority to use such funds under applicable law, to enable it to pay any amounts payable by the Company in cash pursuant to (i) the terms of the Exchange Offer and (ii) Sections 6 and 7.
(t) there are no contractsOn or prior to the Commencement Date, agreements or understandings between the Company and any person granting such person the right to require the Company to include such securities with the Notes registered pursuant will have made appropriate arrangement, to the Registration Statement;extent applicable, with DTC or any other qualified securities depositary to allow for the book-entry movement of the tendered Old Securities between depositary participants and the Exchange Agent.
(u) each The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or any person or affiliate located in Cuba.
(v) The Company and its subsidiaries is (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(v) except as disclosed in the Prospectus, each of the Company and its subsidiaries owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names necessary to the conduct of the business as now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, would have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(w) each document filed or to be filed under the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Samples: Dealer Manager Agreement (Timco Aviation Services Inc)
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The ------------------------------------------------------------------ ----------------------------------------------------------------- Company represents and warrants to you, and agrees with you, that (i) on and as of the Commencement Date and at all times date on or prior to date when which the Exchange Offer is consummated first commenced (the "Closing Commencement ------------ Date"):
), (aii) on and as of the Registration Statement has become effective; no stop order suspending the effectiveness effective date of the Registration Statement is in effect(the "Effective Date"), and no proceedings (iii) as of the date that the Old Securities are accepted -------------- for such purpose are pending before orexchange (the "Acceptance Date"), to the Company's knowledge, threatened by the Commission;that: ---------------
(i) the Exchange Offer Materials, including the The Registration Statement, the Schedule 13E-4 Statement and the Prospectus, comply andand any supplements or amendments thereto, as amended or supplemented, if applicable, complied and will comply in all material respects with the provisions of the Securities Act, the Exchange Act and of the Trust Indenture ActAct of 1939, as amended, and the applicable rules and regulations of the Commission thereunder; thereunder (collectively, the "Trust Indenture Act"), (ii) and the Registration StatementExchange Offer Documents, and any amendments or supplements, when it became effectivemailed or furnished to holders of Old Securities, did complied and will comply in all material respects with the provisions of the Securities Act and the Exchange Act.
(b) The Exchange Offer Documents at all such times do not and will not contain and as amended or supplemented, if applicable, will not contain, any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the other Exchange Offer Materials or the Prospectus contains, and, as amended or supplemented, if applicable, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 8(b) do not apply (A) to statements or omissions in the Exchange Offer Materials based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee under the Indenture.
(c) No restraining order has been issued or, proceedings or litigation initiated, or to the Company Company's knowledge, threatened, and no investigation has been initiated or, to the corporate power Company's knowledge, threatened, with respect to the Exchange Offer, the issuance of the New Securities in exchange for the Old Securities pursuant to the provisions of the Exchange Offer or the execution, delivery and authority to execute, deliver and perform its obligations under performance of this Agreement, the New Indenture or the Supplemental Indenture, in any case, by or before the Commission or any Other Agency. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending or, to the Notes and to consummate the Exchange Offer;
(d) the Exchange OfferCompany's knowledge, this Agreement and all other actions contemplated by the Company contemplated in Commission. No stop order suspending the Exchange Offer Materials and this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, and no other corporate proceedings by the Company are necessary to authorize any such actions;
(e) this Agreement has been duly and validly executed and delivered by the Company and is a legal, valid and binding obligation issuance or exchange of the Company;
(f) the Prospectus as amended or supplemented in relation New Securities pursuant to the Exchange Offer has been filed with issued and no proceedings for that purpose are pending or, to the Company's knowledge, are contemplated, and any request of the Commission pursuant for additional information (to Rule 424(b), if required, within be included in the applicable time period prescribed for such filing by Registration Statement or in the rules and regulations under the Act;Prospectus or otherwise) has been (or will be) complied with or otherwise satisfied.
(gd) the Exchange Agent Agreement and Information Agent Agreement are, or will be within two (2) business days Each of the Commencement Date, Company and its subsidiaries (as such term is defined in full force and effect;
(h) the Indenture has been duly authorized by the Company, has been duly qualified under the Trust Indenture Act, and assuming due authorization, execution and delivery Rule 1-02 of the Indenture by the Trustee, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable in accordance with its terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity);
(i) the Notes to be issued Regulation S-X promulgated pursuant to the Exchange Offer have been Securities Act) (each, a "subsidiary") is a company duly authorizedorganized, and, assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Exchange Offer, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Notes will conform in all material respects to the description thereof contained in the Prospectus;
(j) the Company has been duly incorporated, is validly existing as a corporation and in good standing ---------- under the laws of the State its jurisdiction of Delaware, has the corporate formation with full power and authority (corporate or other) to own its property properties and to conduct its business as presently conducted as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that where the failure to be so qualified or to be in good standing standing, either singly or in the aggregate, would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;.
(ke) each subsidiaries of Subject to obtaining Company stockholder approval, the Company has been duly incorporatedall necessary corporate power and authority (i) to enter into and perform its obligations under this Agreement and the New Indenture, is validly existing as a corporation and (ii) to deliver the New Securities in good standing under exchange for the laws Old Securities pursuant to the terms of the jurisdiction Exchange Offer.
(f) Subject to obtaining Consents to the Proposed Amendments from holders of its incorporationat least the required amount of Old Securities outstanding as described in the Prospectus, the Company has the all necessary corporate power and authority to own enter into and perform its property and obligations under the Supplemental Indenture.
(g) Assuming, as of the Commencement Date only, Consents to conduct its business the Proposed Amendments are received from holders of at least the required amount of Old Securities outstanding as described in the Prospectus (the "Requisite Holders"), ----------------- and is duly qualified to transact business and is in good standing in each jurisdiction in which assuming, as of the conduct Commencement Date only, satisfaction of its business or its ownership or leasing of property requires such qualification, except the other conditions to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(l) the authorized capital stock execution of the Company conforms as to legal matters to the description thereof contained Supplemental Indenture described in the Prospectus;
(m) , including obtaining the shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non-assessable;
(1) the shares of Common Stock initially issuable upon conversion consents of the Debentures (the "Shares") have been duly authorized and, when issued and delivered in accordance with the terms of the Notes, will be validly issued, fully paid and non-assessableCompany's lenders described therein, and upon obtaining stockholder approval as set forth in the issuance of such shares is not subject to any preemptive or similar rights and (2) Prospectus, the Rightsexecution, if any, issuable upon conversion of the Debentures have been duly authorized and, when and if issued upon conversion in accordance with the terms of the Indenture and the Rights Agreement, will have been validly issued;
(o) the execution performance and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the New Indenture and the NotesSupplemental Indenture, the issuance of the New Securities pursuant to the provisions of the Exchange Offer, and the consummation of the Exchange Offer do not and will not: (i) conflict with or constitute a breach of, or a default (with the passage of time or otherwise) under, or (ii) result in the imposition of a lien on any properties of the Company or any of its subsidiaries or (iii) an acceleration of indebtedness pursuant to, the charter or bylaws of the Company or any of its subsidiaries, or any material bond, debenture, note or any other evidence of material indebtedness or any material indenture, (including the Old Indenture) mortgage, deed of any of its subsidiaries is a party or by which any of them is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject. No consent, approval, authorization or other order of any governmental or regulatory agency, including the Commission and any Other Agency, is legally required for the issuance and delivery by the Company of the Notes New Securities pursuant to the Exchange Offer and the execution of the New Indenture and the Supplemental Indenture other than (i) consents, approval, authorizations or other orders that have been received or will be received on or prior to the consummation of the Exchange Offer, and (ii) Consents to the fulfillment Proposed Amendments from the Requisite Holders.
(h) The accountants who have certified or shall certify the financial statements of the terms hereof Company filed or to be filed with the Commission as part of the Registration Statement and thereof, do not the Prospectus or incorporated by reference therein are independent accountants as required by the Securities Act and will not contravene, violate, conflict with, result in the breach of, or constitute a default under Exchange Act.
(i) any provision This Agreement has been duly authorized and this Agreement has been validly executed and delivered by the Company and constitutes the legal, valid and binding agreement of applicable the Company, enforceable against it in accordance with its terms except to the extent that (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or other similar laws affecting creditors rights generally or by general principles of equity whether asserted in an action at law or regulation; in equity and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws, including the certificate of incorporation or by-laws public policies underlying such laws.
(j) The consolidated historical financial statements of the Company; (iii) any agreement or other instrument binding upon , and the Company or any of its subsidiaries; or (iv) any judgmentrelated notes and schedules, determination, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries other than, included in the case Registration Statement and Prospectus complied and will comply in all material respects with the requirements of clauses (i), (iii) the Securities Act and (iv), any such contravention, violation, conflict, breach, or default that individually or in the aggregate would not have a material adverse effect on Exchange Act and presented and will present fairly the consolidated financial position of the Company and its consolidated subsidiaries, taken as of the dates indicated, and the results of its operations and the changes in its financial position for the periods therein specified. Such historical consolidated financial statements (including the related notes and schedules), have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods therein specified except, in each case, as disclosed in information included in the Prospectus. The other historical financial information and statistical data set forth in the Prospectus, in each case including the accompanying notes, are prepared on a wholebasis consistent with the relevant historical consolidated financial statements of the Company.
(k) The pro forma financial statements set forth in the Prospectus have been prepared to give effect to assumptions made on a reasonable basis, or historical transactions and proposed transactions such as are fully and accurately described in the Prospectus, and the pro forma adjustments have been properly applied on the ability of the Company to perform its obligations hereunder or thereunder and commence and consummate the Exchange Offer; no consent, approval, authorization, permit or order of, or the qualification with, the Commission or any Other Agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, bases described therein.
(l) In connection with the Exchange Offer, the issuance Company has complied, and delivery of the Notes pursuant will continue to comply at all times prior to the Exchange Offer and the consummation expiration of the Exchange Offer, except (i) such as have been made or will be made when required as contemplated hereby under with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act.
(m) (i) The Supplemental Indenture will have been duly authorized by the Company on the Acceptance Date and may be entered into upon the consent of the Requisite Holders, and (ii) such filings and notifications with or assuming satisfaction of the conditions to the NYSE execution of the Supplemental Indenture as described in the Prospectus and assuming the due authorization, execution and delivery of the Supplemental Indenture by the Old Trustee, upon execution and delivery of the Supplemental Indenture (A) the Supplemental Indenture will have been made or effected the Proposed Amendments to the Old Indenture, (B) the Old Indenture as modified by the Supplemental Indenture will be made when requiredthe legal, valid and binding obligation of the Company, (C) the Old Securities not exchanged will remain legal, valid and binding obligations of the Company entitled to the benefits of the Old Indenture as so modified, and (iiiD) such the Old Indenture as so modified will be, and the Old Securities outstanding thereunder will remain, enforceable in accordance with their respective terms, except to the extent limited by bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity.
(n) Upon obtaining stockholder approval, the New Indenture will be duly authorized and, when executed and delivered by the Company, will be a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms except to the extent that the same may be required limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity, whether asserted in an action at law or in equity. The New Indenture conforms in all material respects to the securities or Blue Sky laws requirements of, and is qualified under, the Trust Indenture Act.
(o) Upon obtaining stockholder approval, the New Securities will be duly authorized and, when executed, authenticated and delivered in accordance with the terms of the various states New Indenture, will be the legal, valid and binding obligations of the Company entitled to the benefits of the New Indenture and enforceable against the Company in accordance with their terms except to the extent that the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or the securities other laws now or hereafter in effect relating to creditors' rights generally or by general principles of non-U.S. jurisdictionsequity, whether asserted in each case, an action at law or in connection with the Exchange Offer;equity.
(p) Subsequent to the dates as of which information is given in the Registration Statement and the Prospectus and through the Exchange Date, none of the Company nor any of its subsidiaries has incurred or will have incurred any material liabilities or obligations direct or contingent, or has entered into or will enter into any material transactions, not in the ordinary course of business, except transactions disclosed in or contemplated by the Registration Statement or the Prospectus, and, except as disclosed in or contemplated by the Registration Statement or the Prospectus, there has not occurred been and will not have been any material change in the capital stock or long-term indebtedness of the Company or any of its subsidiaries or any payment of or declaration to pay any dividends or any other distribution with respect to the Company's capital stock, or any material adverse change change, or any development involving a prospective material adverse change change, in the condition, financial or otherwise, or in the earnings, business business, or operations or business prospects of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement);.
(q) there are no legal or governmental proceedings pending orThe Exchange Offer, the Proposed Amendments, the New Securities, the New Indenture, the Old Securities, the Old Indenture and the Supplemental Indenture conform, in all material respects to the Company's knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described descriptions thereof in the Registration Statement or the Prospectus and are not so described, other than such proceedings that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries taken as a whole, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required;Exchange Offer Documents.
(r) each of the The Company is not and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would will not have a material adverse effect on the Company and its subsidiaries, taken be as a whole;
(s) the Company is not, and after giving effect to result of the consummation of the Exchange Offer, will not be an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in under the Investment Company Act of 1940, as amended;, and the rules and regulations promulgated by the Commission thereunder.
(s) Upon completion of the rights offering, the Company has or will have sufficient funds available, and has or will have sufficient authority to use such funds under applicable law, to enable it to pay any amounts payable by the Company in cash pursuant to (i) the terms of the Exchange Offer and (ii) Sections 6 and 7.
(t) there are no contractsOn or prior to the Commencement Date, agreements or understandings between the Company and any person granting such person the right to require the Company to include such securities with the Notes registered pursuant will have made appropriate arrangement, to the Registration Statement;extent applicable, with DTC or any other qualified securities depositary to allow for the book-entry movement of the tendered Old Securities between depositary participants and the Exchange Agent.
(u) each The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or any person or affiliate located in Cuba.
(v) The Company and its subsidiaries is (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(v) except as disclosed in the Prospectus, each of the Company and its subsidiaries owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names necessary to the conduct of the business as now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, would have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(w) each document filed or to be filed under the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The ------------------------------------------------------------------ Company represents and warrants to you, and agrees with you, that (except that the Company makes no representations or warranties as to you, any of the Commencement Date and at all times your affiliates or any persons acting on or prior to date when the Exchange Offer is consummated (the "Closing Date"your behalf):
(a) The Company has the corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Exchange Offer.
(b) The Exchange Offer has been duly authorized by all necessary corporate action by the Company.
(c) Each of this Agreement, the Engagement Letter and the Indemnity Letter (as defined herein) has been duly authorized, executed and delivered by the Company.
(i) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Company's its knowledge, threatened by the Commission;
; (iii) each document filed or to be filed pursuant to the Exchange Offer Materials, including Act and incorporated by reference into the Registration Statement, the Schedule 13E-4 and the Prospectus, comply and, as amended Prospectus complied or supplemented, if applicable, will comply when so filed in all material respects with the Securities Act, the Exchange Act and the Trust Indenture Act, and the applicable rules and regulations of the Commission thereunder; , (iiiii) the Registration Statement, when it became effective, did not contain and and, as amended or supplemented, if applicable, as of the effective date of any amendment or supplement, will not contain, any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Registration Statement and (iii) none of the other Exchange Offer Materials or the Prospectus contains, comply and, as amended or supplemented, if applicable, will comply in all material respects with all applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder; and (v) the Prospectus, as of the date it bears, does not contain any and, as amended or supplemented, if applicable (as of the date of such amendment or supplement), will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except provided, however, that the representations and warranties set forth in this paragraph 8(b) do not apply (A) no representation, warranty or agreement is made as to statements or omissions in the Exchange Offer Materials based upon information relating to the Dealer Manager you furnished to the Company in writing by the Dealer Manager expressly you or on your behalf specifically for use therein or (B) to that part of inclusion in the Registration Statement that constitutes or the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee under the IndentureProspectus.
(ce) The Schedule TO, as originally filed and subsequently amended, and any amendments or supplements thereto and the information filed pursuant to Rule 425 of the Securities Act comply, or will comply, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder; and none of the Schedule TO or any amendment or supplement thereto and the information filed pursuant to Rule 425 includes (as supplemented or amended, as applicable, and as of the date of filing or use of such information), or will include, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation, warranty or agreement is made as to information relating to you furnished in writing by you or on your behalf specifically for inclusion in the Schedule TO or information filed pursuant to Rule 425.
(f) The Company will accept Shares for exchange in accordance with and subject to the terms and conditions of the Exchange Offer; and the Company has caused the corporate power Exchange Agent to make appropriate arrangements with The Depository Trust Company and authority any other "qualified" registered securities depository to allow for the book-entry movement of exchanged Shares between depository participants and the Exchange Agent.
(g) No consent, approval, authorization or order of, or qualification with, any government body or agency is required in connection with the execution, delivery and performance of this Agreement, except such as have been obtained or as may be required by the securities or Blue Sky laws of the various states and the securities or other laws of applicable foreign jurisdictions in connection with the offer and sale of the Exchange Shares, except where the failure to obtain or make such consent, approval, authorization, order or qualification would not materially adversely affect the ability of the Company to execute, deliver and perform its obligations under this Agreement.
(h) Except as disclosed in the Prospectus, (i) the Exchange Offer and the execution and delivery of, and the consummation of the transactions contemplated in, this Agreement will comply in all material respects with all applicable requirements of law, including the Securities Act, the Indenture Exchange Act, the various state securities or "blue sky" laws and state "takeover" statutes (collectively, "State Statutes"), all applicable regulations of the Notes Commission or any other governmental or regulatory agency and all applicable laws and regulations of all applicable foreign jurisdictions and (ii) the commencement and consummation by the Company of the Exchange Offer do not and will not require any consent, approval, authorization or permit of, filing with or notification to, the Commission or any other governmental or regulatory agency, except in each case (x) where the failure to comply with such laws and regulations and to obtain or make such consent, approval, authorization, or permit or other action or filing or notification would not materially adversely affect the ability of the Company to execute and deliver this Agreement or to consummate the Exchange Offer;
(d) the Exchange Offer, this Agreement and all other actions by the Company contemplated in the Exchange Offer Materials and this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, and no other corporate proceedings by the Company are necessary to authorize any such actions;
(e) this Agreement has been duly and validly executed and delivered by the Company and is a legal, valid and binding obligation of the Company;
(f) the Prospectus as amended or supplemented in relation to the Exchange Offer has been filed with the Commission pursuant to Rule 424(b), if required, within the applicable time period prescribed for such filing by the rules and regulations under the Act;
(g) the Exchange Agent Agreement and Information Agent Agreement are, or will be within two (2) business days of the Commencement Date, in full force and effect;
(h) the Indenture has been duly authorized by the Company, has been duly qualified under the Trust Indenture Act, and assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and delivered by the Company, will constitute a valid and binding agreement of the Company, enforceable in accordance with its termsterms or to consummate the transactions contemplated by this Agreement or (y) for such consents, except as the enforcement thereof may be limited by (i) bankruptcyapprovals, insolvencyauthorizations, reorganizationor permits that have been granted and filings, moratorium, fraudulent transfer notifications or any other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity);appropriate action that have been made.
(i) The Exchange Offer and the Notes execution and delivery of, and the consummation of the transactions contemplated in, this Agreement do not and will not: (i) violate any provision of the certificate of incorporation or by-laws of the Company; (ii) result in a breach of any material agreement or other material instrument binding upon the Company or (iii) conflict with or violate in any material respect any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, except in each case for any such conflicts, contraventions, violations, breaches or defaults which would not materially adversely affect the ability of the Company to execute and deliver this Agreement or to consummate the Exchange Offer in accordance with its terms or to consummate the transactions contemplated by this Agreement.
(j) The Exchange Shares to be issued by the Company pursuant to the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Exchange Offer, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting enforcement of creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Notes will conform in all material respects to the description thereof contained in the Prospectus;
(j) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(k) each subsidiaries of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(l) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(m) the shares of Common Stock outstanding have been duly authorized and are validly issued, fully paid and non-assessable;
(1) the shares of Common Stock initially issuable upon conversion of the Debentures (the "Shares") Offer have been duly authorized and, when issued and delivered in accordance with pursuant to the terms of the NotesExchange Offer, will be validly issued, fully paid and non-assessable, and the issuance of such shares is the Exchange Shares will not be subject to any preemptive or similar rights and (2) the Rights, if any, issuable upon conversion of the Debentures have been duly authorized and, when and if issued upon conversion in accordance with the terms of the Indenture and the Rights Agreement, will have been validly issued;
(o) the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, the Exchange Offer, the issuance and delivery by the Company of the Notes pursuant to the Exchange Offer and consummation of the Exchange Offer, and the fulfillment of the terms hereof and thereof, do not and will not contravene, violate, conflict with, result in the breach of, or constitute a default under (i) any provision of applicable law or regulation; (ii) the certificate of incorporation or by-laws security holder of the Company; .
(iiik) any agreement or other instrument binding upon the Company or any of its subsidiaries; or (iv) any judgment, determination, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries other than, in the case of clauses (i), (iii) and (iv), any such contravention, violation, conflict, breach, or default that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the ability The authorized capital stock of the Company Company, including the Class H common stock, conforms as to perform its obligations hereunder or thereunder and commence and consummate the Exchange Offer; no consent, approval, authorization, permit or order of, or the qualification with, the Commission or any Other Agency is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Notes, the Exchange Offer, the issuance and delivery of the Notes pursuant to the Exchange Offer and the consummation of the Exchange Offer, except (i) such as have been made or will be made when required as contemplated hereby under the Securities Act, the Exchange Act and the Trust Indenture Act, (ii) such filings and notifications with or to the NYSE as have been made or will be made when required, and (iii) such as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S. jurisdictions, in each case, in connection with the Exchange Offer;
(p) there has not occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement);
(q) there are no legal or governmental proceedings pending or, to the Company's knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described, other than such proceedings that individually or in the aggregate would not have a material adverse effect on the Company and its subsidiaries taken as a whole, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required;
(r) each of the Company and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(s) the Company is not, and after giving effect to the consummation of the Exchange Offer, will not be an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended;
(t) there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to include such securities with the Notes registered pursuant to the Registration Statement;
(u) each of the Company and its subsidiaries is (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(v) except as disclosed in the Prospectus, each of the Company and its subsidiaries owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names necessary to the conduct of the business as now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, would have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(w) each document filed or to be filed under the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed matters in all material respects with to the Exchange Act and description thereof contained in the rules and regulations of the Commission thereunderProspectus.
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