Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 3 contracts

Sources: Distribution Agreement (American Church Mortgage Co), Distribution Agreement (American Church Mortgage Co), Distribution Agreement (American Church Mortgage Co)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File ~~No.~~ N 333-154831) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇~~Boulay, Heutmaker, ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~and Company, ~~LLP~~ P.L.L.P. which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ ' equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undspecific

Appears in 2 contracts

Sources: Distribution Agreement (American Church Mortgage Co), Distribution Agreement (American Church Mortgage Co)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Initial Purchaser that: (a) The ~~Registration Statement on Form S-11~~ Offering Circular (~~File No.~~ including the Incorporated Documents) ~~with respect~~ does not, and any supplement or amendment to it will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Offering Circular (or any supplement or amendment thereto) based upon information relating to the ~~Certificates, including the Prospectus subject~~ Initial Purchaser furnished to ~~completion, has been prepared by~~ the Company in ~~conformity with~~ writing by the ~~requirements~~ Initial Purchaser expressly for use therein. None of the ~~Securities Act, and the Rules and Regulations~~ Incorporated Documents as of the ~~Commission thereunder and has been~~ time they were filed ~~with the Commission under the Securities Act. (b) As~~ or as of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not date hereof 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, in light of the circumstances in which they were made,~~ therein not misleading. ~~When~~ No stop order preventing the ~~Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ use of the ~~offering~~Offering Circular, ~~the Prospectus (as amended~~ or ~~supplemented, if the Company shall have filed with the Commission~~ any amendment ~~thereof~~ or supplement thereto~~) will not~~ , or ~~did not contain~~ any ~~untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in~~ order ~~to make the statements therein, in light~~ asserting that any of the ~~circumstances in which~~ transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued. The Incorporated Documents, at the time they were ~~made~~or hereafter are filed or last amended, ~~not misleading~~as the case may be, with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Offering Circular and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (c) All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights, and there are no ~~proceeding~~ restrictions upon the voting or transfer of the Common Stock pursuant to the Company's charter or by-laws or other governing documents or, except as set forth herein, any agreement or other instrument to which the Company is a party or by which it may be bound. The Company has the authorized and outstanding capital stock as set forth in the Offering Circular, and there have been ~~instituted~~ no changes in ~~any such jurisdiction revoking~~the outstanding capital stock of the Company since the date set forth under the heading "Capitalization" in the Offering Circular, ~~limiting or curtailing, or seeking~~ except to ~~revoke, limit or curtail, such power~~ the extent that certain outstanding options and ~~authority or qualification~~warrants set forth in the Offering Circular may have been exercised. (d) The entities listed on Schedule A hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"). (e) This Agreement has been duly authorized, executed and delivered by the Company. (f) The Indenture has been duly authorized by the Company ~~has operated~~ and, when duly executed and ~~is operating~~ delivered by the Company and duly authorized, executed and delivered by the Trustee, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, respects to the ~~Company’s knowledge~~requirements of the Trust Indenture Act of 1939, ~~valid~~ as amended (the "TIA" or "TRUST INDENTURE ACT"), and ~~in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws,~~ the rules and regulations of the ~~jurisdictions~~ Commission applicable to an indenture which is qualified thereunder. (g) The Notes have been duly authorized and, when duly executed, delivered and authenticated in ~~which it is conducting business~~accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the ~~Company is not~~ availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Notes will conform as to legal matters to the description thereof contained in ~~material violation~~ the Offering Circular. (h) The Notes are convertible into Class A Common Stock in accordance with the terms of ~~any applicable law~~the Indenture; the shares of Class A Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, ~~order~~when issued upon such conversion, ~~rule~~will be validly issued, ~~regulation~~fully paid and nonassessable, ~~writ~~will conform to the description thereof contained in the Offering Circular and will be duly authorized for listing on the NYSE, ~~injunction, judgment or decree~~ subject to notice of ~~any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ official issuance. The stockholders of the Company or ~~over its properties~~other holders of the Company's securities have no pre-emptive or similar rights with respect to the Notes or the Class A Common Stock issuable upon conversion of the Notes. The certificates evidencing the Class A Common Stock issuable upon conversion of the Notes will be in due and proper legal form. (ei) The Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company, and assuming the due execution and delivery by the Initial Purchaser, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Registration Rights Agreement will conform as to legal matters to the description thereof contained in the Offering Circular. (j) Neither the Company nor any of its subsidiaries is ~~not~~ (i) in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws or~~ by-laws (ii) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, ~~joint venture~~ mortgage, lease or other agreement or instrument that is material to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is its subsidiaries, taken as a ~~valid and binding agreement on the part of the Company~~whole, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may be bound;~~subsidiaries or their respective property is bound or (iii) in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation where the consequences of such violation would have a Material Adverse Effect. (k) No statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency, and no injunction, restraining order or order of any nature by a Federal or state court of competent jurisdiction, to which either the Company or any of its subsidiaries is subject, that has been issued or is pending, (i) could interfere with or adversely affect the issuance of the Securities, or (ii) could in any manner draw into question the ~~articles~~ validity of ~~incorporation or bylaws~~ any of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesOperative Documents. (gl) No The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, (except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states), ~~threatened~~(ii) conflict with or constitute a breach of any of the terms or provisions of, ~~any action~~or a default under, ~~suit, claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries or any ~~of its properties~~indenture, ~~assets or rights before any court~~loan agreement, ~~government or governmental agency or body~~mortgage, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal lease or other ~~similar right exists with respect to any of the Certificates to be sold hereunder by the Company~~ agreement or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company instrument that is material to the Company and its subsidiaries, taken as a whole, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company; , any of its subsidiaries or their respective property, (iv) ~~any obligation, direct or contingent, incurred by the Company, except obligations incurred~~ result in the ~~ordinary course~~ imposition or creation of ~~business that~~(or the obligation to create or impose) a Lien under, ~~in the aggregate, are not material; or (v)~~ any ~~loss~~ agreement or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements instrument to which the Company or any of its subsidiaries is a party ~~described~~ or by which the Company or any of its subsidiaries or their respective property is bound, or (v) result in the ~~Registration Statement and Prospectus are valid agreements~~termination, ~~enforceable by~~ suspension or revocation of any Authorization (as defined below) of the Company ~~except as~~ or any of its subsidiaries or result in any other impairment of the ~~enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’~~ rights ~~generally or by judicial limitations on~~ of the ~~right~~ holder of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all any such ~~properties as are necessary to its operations as now conducted~~Authorization. (m) ~~The Company was organized and has been operated to qualify~~ Except as ~~a real estate investment trust under Section 856 of~~ disclosed in the ~~Internal Revenue Code and~~Offering Circular, ~~to the knowledge of the Company,~~ there are no ~~event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (~~legal or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been governmental proceedings pending or, to the ~~best of the~~ Company’s 's knowledge, threatened to which the Company or any of its subsidiaries is or could be ~~asserted against the Company~~ a party or to which any of their respective property is or could be subject that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights thatresult, singly or in the aggregate, if in a Material Adverse Effect or could materially and adversely affect the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security ability of the Company to ~~facilitate the sale or resale~~ perform its obligations under any of the ~~Certificates. The Company has not distributed and will not distribute prior to~~ Operative Documents, or which are otherwise material in the ~~completion~~ context of the ~~distribution of the Certificates, any offering material in connection with the offering and~~ sale of the ~~Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act~~Securities. (qn) ~~The Company maintains a system~~ Each of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and ~~each entity that owns or possesses real property in which the Company holds a security interest~~ its subsidiaries is in compliance in all material ~~compliance~~ respects with all ~~material~~ rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and the protection of health or the environment (~~the “Environmental Laws”~~"ENVIRONMENTAL LAW") which are applicable to its business; ; (ii) neither the Company nor any of its subsidiaries has received no any written notice from any governmental authority or third party of an asserted claim under Environmental Laws~~, which claim is required to be disclosed in the Registration Statement and the Prospectus;~~ ; (iii) each of the Company and its subsidiaries has received all permits, licenses and other approvals required of it under applicable Environmental Laws to conduct its business and is in compliance with all terms and conditions of any such permit, license or approval; (iv) to the Company's knowledge, no facts currently exist that will ~~not be required~~ require the Company or its subsidiaries to make ~~any~~ future material capital expenditures to comply with Environmental Laws; ~~and~~ and (ivv) no property which is or has been owned, leased or occupied by the Company or ~~in which the Company holds a security interest~~ its subsidiaries has been designated as a Superfund site pursuant to the Comprehensive Environmental Response, Compensation ~~and~~ of Liability Act of ~~1980~~1980 ("CERCLA"), as amended (42 U.S.C. ~~ss.~~ Section 9601, et seq.), ) or otherwise designated as a contaminated site ~~und~~under applicable state or local law. Neither the Company nor any of its subsidiaries has been named as a "potentially responsible party" under the CERCLA. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which the Company identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect. (o) The Company is not, nor will it be, as a result of or after giving effect to the issuance of the Securities and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, (i) insolvent, (ii) left with an unreasonably small capital with which to engage in its existing and anticipated businesses or (iii) incurring debts beyond its ability to pay such debts as they mature. The Company is not issuing the Securities in anticipation of insolvency. (p) Neither the Company nor any of its subsidiaries has violated any provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any provisions of the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. None of the Company, its subsidiaries or any director, officer or employee of the Company or its subsidiaries has, in the course of such person's actions for, or on behalf of, the Company or its subsidiaries, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; and none of the Company, its subsidiaries, or to the Company's knowledge, any director, officer, employee, agent or other person acting on behalf of the Company or its subsidiaries, has, in the course of such person's actions for, or on behalf of, the Company or its subsidiaries made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (q) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and given all notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including without limitation the receipt of any notice from any authority or governing body) that allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are burdensome to the Company or any of its subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (r) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them that is material to the business of the Company and its subsidiaries, in each case free and clear of all Liens and defects, except such as are described in the Offering Circular or such as do not materially affect the value o

Appears in 2 contracts

Sources: Purchase Agreement (Skechers Usa Inc), Purchase Agreement (Skechers Usa Inc)

Appears in 2 contracts

Sources: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File ~~No.~~ N 333-75836) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or ~~bylaws~~ bylaw of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) Boulay, Heutmaker, Zibell a▇▇ ▇▇▇pany, P.L.L.P. ▇▇▇▇▇ ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which~~ has expressed its opinion with respect to certain of the financial statements ~~included~~ filed as a part ~~(whether filed or incorporated by reference)~~ of the Registration Statement, is an independent ~~registered public~~ accounting firm within the meaning of the Securities ~~Act, the Public Company Accounting Oversight Board (PCAOB),~~ Act and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus ~~(or incorporated therein by reference)~~ comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement ~~(or incorporated therein by reference)~~ present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or ~~long~~ lon term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, ~~shareholders’~~ stockholders' equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s 's knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s 's general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s 's general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “"Environmental Laws”") which are applicable to its business; (ii) the Company has received no notice ~~from~~ fro any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; : and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site ~~und~~under applicable state or local law. (s) No person or entity other than the Underwriter is entitled to any compensation or other payments from either the Company or the Underwriter, as

Appears in 2 contracts

Sources: Distribution Agreement (American Church Mortgage Co), Distribution Agreement (American Church Mortgage Co)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees ~~with the Underwriter as follows~~with, ~~which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~you that: (a) The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a Registration Statement ~~on Form S-11~~ (File No. 0-29540) ~~with respect to~~ on Form 10-SB and prepared and filed one or more amendments thereto covering the ~~Certificates~~registration of the Shares under the Securities Exchange Act of 1934, ~~including~~ as amended (the ~~Prospectus subject to completion, has been prepared by the Company in conformity~~ "Exchange Act"). (b) The Registration Statement (and any post effective amendment thereto) will fully comply with the ~~requirements~~ applicable provisions of the ~~Securities Act,~~ Exchange Act and the Rules and Regulations ~~of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date~~thereunder, and ~~at all times subsequent thereto until the termination of the Offering, the~~ that Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did does not contain any untrue statement of a material fact or and does not omit to state a any material fact required to be stated therein or necessary in order to make the ~~statements therein, in light of the circumstances in which they were made,~~ statement therein not misleading~~. When the Registration Statement is or was declared effective by the Commission~~ , and at all subsequent times ~~subsequent~~ thereto ~~until~~ up to and including the ~~termination of~~ Closing Date. The Registration Statement (and the ~~offering, the Prospectus (~~Offering Circular as amended or supplemented~~, if the Company shall have filed~~ ) complies with the ~~Commission any amendment thereof or supplement thereto) will not or did~~ provisions of the Exchange Act and the Rules and Regulations thereunder and does not contain any untrue statement of a material fact or and does not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Vancouver, British Columbia and the ~~State of Minnesota, with~~ Company has full power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as described in the ~~Registration Statement~~ Offering Circular and ~~Prospectus. The Company~~ as being conducted, and is ~~duly qualified~~ in compliance in all material respects with the laws requiring its qualification to do business ~~and is~~ as a foreign corporation in ~~good standing in each jurisdiction~~ all other jurisdictions in which ~~the ownership~~ it owns or ~~lease of its~~ leases substantial properties or in which the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The ~~Company has operated~~ Shares have been duly authorized, and ~~is operating in material compliance with all authorizations~~when issued and delivered as contemplated by this Agreement, ~~licenses~~will have been validly issued and will be fully paid and nonassessable, ~~certificates, consents, permits, approvals~~ and ~~orders of and from all state, federal and other governmental regulatory officials and bodies necessary~~ conform to ~~own its properties and to conduct its business as described~~ the description thereof contained in the ~~Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect~~Offering Circular. ~~The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations~~ No further approval or authority of the ~~jurisdictions in which it is conducting business, and~~ stockholders or the Board of Directors of the Company ~~is not in material violation~~ will be required for the issuance and sale of ~~any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ the ~~Company or over its properties~~Shares as contemplated herein. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is this Agreement constitutes a legal, valid and binding ~~agreement on the part~~ obligation of the Company, enforceable ~~against the Company~~ in accordance with its ~~terms.~~ terms and is in all respects in full compliance with all applicable provisions of the securities laws. (f) The ~~performance~~ execution and delivery of this ~~Agreement~~ Agreement, and the ~~consummation of~~ performance by the ~~transactions herein contemplated~~ Company hereunder and thereunder will not conflict with, result in a breach or violation of ~~any of the terms and provisions of,~~ or constitute a default ~~under: (i)~~ under any ~~indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other~~ agreement or instrument to which the Company is a party or ~~by which~~ the corporate charter or by-laws of the Company or ~~its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii)~~ any ~~applicable~~ law, order, rule, regulation, ~~writ, injunction, judgment~~ decree or ~~decree~~ injunction of any ~~court~~jurisdiction, ~~government~~ court or governmental agency or body, ~~domestic or foreign, having jurisdiction over the Company or over its properties. (g) No~~ and no consent, approval, authorization or order of of, or ~~qualification~~ filing with any ~~court,~~ governmental agency or ~~body, domestic or foreign, having jurisdiction over the Company or over its properties~~ body is required for the ~~execution and delivery of this Agreement and the consummation~~ performance by the Company of this Agreement, with the ~~transactions herein contemplated~~exception of the filing with the Vancouver Stock Exchange. (g) The Registration Statement, ~~except such~~ as ~~may be required under~~ originally filed or as amended and supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto complies with the applicable provisions of the Securities ~~Act~~Exchange Act and the Rules and Regulations thereunder and does not contain any untrue statement of a material fact and does not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the ~~Exchange Act~~circumstances under which they were made, ~~or under state or other securities or Blue Sky laws, all of which requirements have been satisfied~~not misleading. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not ~~taken and will not take, directly~~ given any information or ~~indirectly,~~ made any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material representations in connection with the offering ~~and sale~~ of the ~~Certificates~~ Shares, written or oral, other than ~~any Preliminary Prospectus,~~ as contained in the ~~Prospectus,~~ Offering Circular or the Registration ~~Statement and other materials, if any, permitted by the Securities Act~~Statement. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 2 contracts

Sources: Underwriting Agreement (Aztek Inc), Underwriting Agreement (Aztek Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The conditions for use of Form S-3 under the Securities Act by the Company, as set forth in the General Instructions thereto, have been satisfied. (b) The Registration Statement on Form ~~S-11~~ S-3 (~~File No.~~ including any amendments thereto, if any) with respect to the ~~Certificates, including the Prospectus subject to completion,~~ Firm Stock has (i) been prepared by the Company in conformity in all material respects with the requirements of the Securities Act, ~~and the Rules and Regulations of the Commission thereunder and has~~ (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. (bc) ~~As of the Effective Date~~The Registration Statement conforms, and ~~at all times subsequent thereto until~~ the ~~termination of the Offering,~~ Prospectus and any further amendments or supplements to the Registration Statement ~~and Prospectus~~or the Prospectus will, ~~and all amendments thereof and supplements thereto, will comply~~ when they become effective or ~~complied~~ are filed with the ~~provisions and~~ Commission, as the case may be, conform in all material respects to the requirements of the Securities Act and ~~the Rules~~ do not and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectuswill not, ~~or issued a stop order with respect to the offering~~ as of the ~~Certificates~~ applicable effective date (if as to the Registration Statement ~~has been declared effective~~and any amendment thereto) and as of the applicable filing date (as to the Prospectus only, and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein (as to the Prospectus only, in light of the circumstances under which they were made), or ~~instituted or,~~ necessary to make the ~~Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When~~ statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement ~~shall~~ or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter specifically for inclusion therein. (d) The documents incorporated by reference in the Registration Statement, the Prospectus or any amendment thereto, when they became effective or, were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and ~~when any post-effective amendment thereto shall become effective, the Registration Statement~~ will not ~~or did 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, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein ~~or necessary in order to make the statements therein, in light of the circumstances in which they were made,~~ not misleading. (ce) The Company ~~has~~ and each of its subsidiaries (as defined in Section 16) have been duly ~~incorporated~~ formed and is are validly existing ~~as a corporation~~ in good ~~standing~~ standing, where applicable, under the laws of ~~the State~~ their respective jurisdictions of ~~Minnesota~~organization, ~~with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is~~ are duly qualified to do business and is are in good ~~standing~~ standing, where applicable, in each jurisdiction in which ~~the~~ their respective ownership or lease of ~~its properties~~ property or the conduct of ~~its business~~ their respective businesses requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified or in good ~~standing~~ standing, individually or in the aggregate, would not have a material adverse effect on the ~~condition (~~general affairs, management, results of operations, consolidated financial ~~or otherwise)~~position, ~~earnings, operations~~ stockholders’ equity or business of the ~~Company~~Company and its subsidiaries, taken as a whole, (a “Material Adverse Effect”), and ~~no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such~~ have all power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own ~~its~~ or hold their respective properties and to conduct ~~its business as described~~ the businesses in which they are engaged to execute and deliver this Agreement; and none of the ~~Registration Statement and Prospectus, all~~ subsidiaries of ~~which are, to~~ the Company~~’s knowledge~~, ~~valid and~~ other than dj Orthopedics, LLC, is a “significant subsidiary,” as such term is defined in ~~full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations~~ Rule 405 of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are boundSecurities Act. (f) The Company has ~~full requisite power~~ an authorized capitalization as set forth in the Prospectus. All of the issued shares of capital stock of the Company have been duly and ~~authority~~ validly authorized and issued, were issued in compliance with U.S. federal and state securities laws, are fully paid and nonassessable and conform to ~~enter into this Agreement~~ the description thereof contained in the Prospectus. All of the Company’s options, and ~~perform~~ other rights to purchase or exchange any securities for shares of the ~~transactions contemplated hereby~~Company’s capital stock have been duly and validly authorized and issued and were issued in compliance with U.S. federal and state securities laws. All of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and issued and are fully paid and nonassessable, as applicable, and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for the liens of Wachovia Bank, National Association, pursuant to that certain credit agreement dated as of November 26, 2003 among dj Orthopedics, LLC, as Borrower, dj Orthopedics, Inc., the lenders named therein, Wachovia Bank, National Association, as Administrative Agent, ▇▇▇▇▇ Fargo Bank, National Association, as Syndication Agent and Bank of America, N.A., Bank of the West and Union Bank of California, N.A. as Documentation Agents, and except for dj Orthopedics France, S.A.S., 1% of which is held by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. (g) This Agreement has been duly authorized, executed and delivered by the ~~Company~~ Company. (h) The execution, delivery and ~~is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The~~ performance of this Agreement by the Company and the consummation of the transactions ~~herein~~ contemplated hereby will not conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under~~: (i)~~ , any indenture, mortgage, deed of ~~trust~~ trust, loan ~~agreement, bond, debenture, note,~~ agreement or ~~other evidence of indebtedness,~~ any ~~lease, contract, joint venture or~~ other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may be bound; (ii) the articles of incorporation~~ subsidiaries is bound or ~~bylaws~~ to which any of the ~~Company: or~~ property or assets of the Company or any of its subsidiaries is subject (~~iii)~~ except where such conflict, breach, violation or default would not reasonably be expected to have a Material Adverse Effect), nor will such actions result in any ~~applicable law~~violation of the provisions of the charter, by-laws, or other similar organizational document of the Company or any of its subsidiaries or any statute or any order, ~~rule, regulation, writ, injunction, judgment~~ rule or ~~decree~~ regulation of any ~~court, government~~ court or governmental agency or ~~body, domestic or foreign,~~ body having jurisdiction over the Company or ~~over~~ any of its ~~properties.~~ subsidiaries or any of their properties or assets; and except for the registration of the Firm Stock under the Securities Act, the listing of the Firm Stock by the New York Stock Exchange and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws or Blue Sky laws in connection with the purchase and distribution of the Firm Stock by the Underwriter, and except as may be required by the National Association of Securities Dealers (~~g) No~~ “NASD”), under the federal or provincial laws of Canada, or under the laws of any other foreign jurisdiction in which the Firm Stock may be offered and sold and where the failure to obtain such consent, approval, authorization or order, individually or in the aggregate, would not have a Material Adverse Effect, no consent, approval, authorization or order of of, or ~~qualification with~~ filing or registration with, any ~~court,~~ such court or governmental agency or ~~body, domestic or foreign, having jurisdiction over the Company or over its properties~~ body is required for the ~~execution~~ execution, delivery and ~~delivery~~ performance of this Agreement ~~and the consummation~~ by the Company of and the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) ~~The Certificates to be sold hereunder by~~ Except as described in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been ~~duly authorized for issuance and sale pursuant~~ waived or satisfied) to ~~this Agreement and, when issued and delivered against payment therefor in accordance with~~ require the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, Company to file a registration ~~right, right of first refusal or other similar right exists~~ statement under the Securities Act with respect to any securities of the ~~Certificates~~ Company owned or to be ~~sold hereunder~~ owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company or under the ~~issuance and sale thereof~~Securities Act. The ~~Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part~~ holders of outstanding shares of the Company’s capital stock are not entitled to preemptive or other rights to subscribe for the Stock. As of April 30, ~~enforceable against~~ 2004, except for (i) 3,319,533 shares of Common Stock reserved for the exercise of options outstanding; (ii) 1,200,225 shares of Common Stock reserved for issuance under the Company’s employee stock purchase plan; and (iii) 4,523,291 shares of Common Stock reserved for issuance under the Company’s stock option plans, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company ~~in accordance with its terms. The Certificates will comply as to form with all applicable laws~~were outstanding. (j) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~Neither the Company nor any of its subsidiaries has sustained, ~~LLP which has expressed its opinion with respect to certain~~ since the date of the latest audited financial statements included ~~as a part (whether filed~~ or incorporated by ~~reference) of~~ reference in the ~~Registration Statement~~Prospectus, ~~is an independent registered public accounting firm within the meaning of the Securities Act~~any material loss or interference with its business from fire, ~~the Public Company Accounting Oversight Board (PCAOB)~~explosion, ~~and the Rules and Regulations. The financial statements of the Company~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and Prospectus; and, except for the ~~respective periods~~ grant of options or issuance of shares of Common Stock pursuant to ~~which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included~~ its stock incentive plans or employee stock purchase plans described in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, ~~except as is otherwise disclosed in the Registration Statement or Prospectus~~since such date, there has not ~~been: (i)~~ been any change in the capital stock or ~~long term debt (including any capitalized lease obligation) or material increase in the short~~long-term debt of the ~~Company; (ii) any material adverse change,~~ Company or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of ~~operations or general condition of the Company; (iii) any transaction entered into by the Company~~ its subsidiaries that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which would reasonably ~~could~~ be expected to have a ~~material adverse effect on~~ Material Adverse Effect or that would reasonably be expected to materially affect the ~~condition (financial or otherwise), earnings, operations or business~~ prospects of the Company, other than as set forth in the Prospectus. (k) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved; provided, however, that the statements that are unaudited are subject to normal year-end adjustments and do not contain certain footnotes required by generally accepted accounting principles. (l) ~~Except as is otherwise expressly disclosed~~ Ernst & Young LLP, who have certified certain financial statements of the Company, whose report appears in the ~~Registration Statement~~ Prospectus and who have delivered the letter or ~~Prospectus:~~letters referred to in Section 9(h) hereof, are independent public accountants as required by the Securities Act. (im) None of the Company ~~has~~ or any of its subsidiaries owns any real property. The Company and each of its subsidiaries have good and marketable title to all ~~of the property, real and personal, and assets described in the Registration Statement or Prospectus as being~~ personal property owned by itthem, in each case free and clear of ~~any~~ all liens, encumbrances and defects, except such as are described in the Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and all ~~pledges~~assets, ~~liens~~real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, ~~security interests~~subsisting and enforceable leases (except when enforceability is limited by laws relating to bankruptcy and general principles of equity), ~~encumbrances~~with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries. (n) The Company and each of its subsidiaries carry, ~~equities~~or are covered by, ~~charges~~ insurance in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. (o) The Company and each of its subsidiaries own or ~~claims~~possess adequate licenses or other rights to use all patents, patent applications, inventions, trademarks, trade names, applications for registration of trademarks, service marks, service ▇▇▇▇ applications, copyrights, know-how, manufacturing processes, trade secrets, licenses and rights in any thereof and any other ~~than~~ intangible property and assets (herein called the “Proprietary Rights”) necessary to conduct its business in the manner described in the Prospectus, except where the failure to so own or possess such as Proprietary Rights would ~~not~~ not, singularly or in the aggregate, have a Material Adverse Effect. All trade secrets belonging to the Company which are material ~~adverse effect on~~ to the ~~condition (financial or otherwise), earnings, operations or~~ business of the ~~Company; (ii)~~ Company and which have not been patented have been kept confidential. Except for the ~~agreements to which~~ litigation with Royce Medical, Inc. and the complaint filed by Aircast, Inc., neither the Company ~~is a party described in the Registration Statement~~ nor any of its subsidiaries has received any notice of infringement or conflict with asserted rights of others, and ~~Prospectus are valid agreements~~no action, ~~enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy~~suit, ~~insolvency~~arbitration or legal, ~~reorganization, moratorium~~ administrative or other ~~similar laws relating to~~ proceeding, or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by itinvestigation is pending, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code andor, to the knowledge of the Company, ~~no event has occurred that would cause~~ threatened, with respect to any Proprietary Rights which could result in any Material Adverse Effect. The Proprietary Rights of the Company and its subsidiaries do not, to ~~fail~~ the knowledge of the Company, infringe or conflict with any right or valid and enforceable patent of any third party, or any discovery, invention, product or process which is the subject of a patent application filed by any third party, known to ~~so qualify~~the Company which could have a Material Adverse Effect. To the knowledge of the Company, no person is infringing on or violating the Proprietary Rights owned or used by the Company or any of its subsidiaries which could result in a Material Adverse Effect. (np) ~~The~~ Except as described in the Prospectus, there are no legal or governmental investigations or proceedings pending to which the Company ~~has timely filed (~~or ~~has timely requested an extension~~ any of ~~time~~ its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to ~~file) all necessary federal~~ the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and ~~state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or,~~ to the best of the Company’s knowledge, ~~could be asserted against the Company that might have a material adverse effect on the condition (financial~~ no such investigations or ~~otherwise), earnings, operations, business~~ proceedings are threatened or ~~properties of the Company, and all tax liabilities are adequately provided for in the books of the Company~~contemplated by governmental authorities or threatened by others. (oq) ~~The Company owns,~~ There are no contracts or ~~possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information~~ other documents which are ~~necessary for the conduct of its present or intended business as~~ required to be described in the Registration ~~Statement~~ Statement, Prospectus or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect filed as exhibits to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement ~~and other materials~~by the Securities Act, ~~if any,~~ which have not been so described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Securities Act. (qr) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other hand, which is required to be described in the Prospectus which is not so described. (s) No labor disturbance by the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, which might reasonably be expected to have a Material Adverse Effect. (t) The Company ~~maintains a system~~ is in compliance in all material respects with all presently applicable provisions of ~~internal accounting controls sufficient to provide reasonable assurance that transactions are executed~~ the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no “reportable event” (as defined in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken ERISA) has occurred with respect to any ~~differences.~~ “pension plan” (ras defined in ERISA) ~~Except as set forth in~~ for which the ~~Registration Statement~~ Company would have any material liability; the Company has not incurred and ~~Prospectus:~~ does not expect to incur any material liability under (i) Title IV of ERISA with respect to the ~~Company~~ termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each ~~entity that owns or possesses real property in~~ “pension plan” for which the Company ~~holds a security interest~~ would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in ~~material compliance with~~ all material ~~rules~~respects and nothing has occurred, ~~laws and regulations relating~~ whether by action or by failure to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Lawsact, which ~~claim is required~~ would reasonably be expected to ~~be disclosed in~~ cause the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act loss of ~~1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und~~suc

Appears in 1 contract

Sources: Underwriting Agreement (Dj Orthopedics Inc)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File No. 333-75836) with respect to the ~~Certificates~~Securities, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the ~~Certificates~~ Securities (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of ~~trust~~ trust, loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) All outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and the authorized and outstanding capital stock of the Company conforms in all material respects with the statements relating thereto contained in the Registration Statement and the Prospectus. The ~~Certificates~~ Securities to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders exists with respect to any of the ~~Certificates~~ Securities to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. Except as disclosed in the Prospectus, the Company has no outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, convertible securities or obligations. The ~~Certificates~~ Securities will comply as to form with all applicable laws. (j) ~~▇▇▇▇~~Boulay, Heutmaker, Zibell and Company, P.L.L.P., which has expressed its opinion wit▇ ▇▇▇▇~~▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect~~ ect to certain of the financial statements ~~included~~ filed as a part ~~(whether filed or incorporated by reference)~~ of the Registration Statement, is an independent ~~registered public~~ accounting firm within the meaning of the Securities ~~Act, the Public Company Accounting Oversight Board (PCAOB),~~ Act and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus ~~(or incorporated therein by reference)~~ comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement ~~(or incorporated therein by reference)~~ present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or ~~long~~ long-term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company; (iii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, ~~shareholders’~~ stockholders' equity, results of operations or general condition of the Company; (~~iii~~iv) any transaction entered into by the Company that is material to the Company; (ivv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (vvi) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s 's knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the ~~Certificates~~Securities. The Company has not distributed and will not distribute prior to the completion of the distribution of the ~~Certificates~~Securities, any offering material in connection with the offering and sale of the ~~Certificates~~ Securities other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s 's general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s 's general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 1 contract

Sources: Distribution Agreement (American Church Mortgage Co)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees ~~with~~ with, the Underwriter ~~as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The Registration Statement ~~on Form S-11~~ has become effective (~~File No.~~ other than any Rule 462(b) ~~with respect~~ Registration Statement to ~~the Certificates, including the Prospectus subject to completion, has been prepared~~ be filed by the Company ~~in conformity with~~ after the ~~requirements~~ effectiveness of this Agreement); any Rule 462(b) Registration Statement filed after the effectiveness of this Agreement will become effective no later than 10:00 P.M., New York City time, on the date of this Agreement. No stop order suspending the effectiveness of the ~~Securities Act~~Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the ~~Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~Commission. (bi) ~~As of~~ Each document filed or to be filed pursuant to the ~~Effective Date,~~ Exchange Act and at incorporated by reference in the Prospectus complied or will comply when so filed in all ~~times subsequent thereto until~~ material respects with the ~~termination of the Offering,~~ Exchange Act; (ii) the Registration Statement ~~and Prospectus~~(other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement), ~~and all amendments thereof and supplements thereto~~when it became effective, did not contain and, as amended, if applicable, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading~~. When~~ , (iii) the Registration Statement ~~is or was declared effective~~ (other than any Rule 462(b) Registration Statement to be filed by the ~~Commission~~ Company after the effectiveness of this Agreement) and ~~at all times subsequent thereto until the termination of the offering,~~ the Prospectus (comply and, as amended or supplemented, if applicable, will comply in all material respects with the Act, (iv) if the Company ~~shall have filed with~~ is required to file a Rule 462(b) Registration Statement after the ~~Commission~~ effectiveness of this Agreement, such Rule 462(b) Registration Statement and any ~~amendment thereof or supplement~~ amendments thereto, when they become effective (A) will ~~not or did~~ 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 (B) will comply in ~~order~~ all material respects with the Act and (v) the Prospectus does 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 necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein. (c) ~~The~~ Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in any preliminary prospectus based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein. (d) Each of the Company and its subsidiaries has been duly ~~incorporated and~~ formed, is validly existing ~~as a corporation~~ and in good standing under the laws of its jurisdiction of formation and has the ~~State of Minnesota, with full~~ power and authority to carry on its business as described in the Prospectus and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign organization authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, ~~and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.~~ taken as a whole (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesa "Material Adverse Effect"). (e) ~~The~~ All outstanding shares of capital stock of the Company is have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights, and all of such shares are owned beneficially and of record by Eastern Enterprises, an unincorporated voluntary association organized in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are boundMassachusetts. (f) The ~~Company has full requisite power~~ entities listed on Schedule A hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock or other ownership interests of each of the Company's subsidiaries have been duly authorized and ~~authority to enter into this Agreement~~ validly issued and ~~perform~~ are fully paid and non-assessable, and are owned by the ~~transactions contemplated hereby.~~ Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien"). (g) This Agreement has been duly authorized, executed and delivered by the Company. (h) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), has been duly authorized, executed and delivered by the Company and is a valid and binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its ~~terms. The performance~~ terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of ~~this Agreement~~ acceleration and the ~~consummation~~ availability of ~~the transactions herein contemplated will not result in a breach or violation~~ equitable remedies may be limited by equitable principles of ~~any of the terms and provisions of, or constitute a default under:~~general applicability. (i) The Indenture constitutes a first "preferred mortgage" on each of the Vessels under the Ship Mortgage Act, as amended, and the Bonds are validly secured by the Indenture in accordance with the terms thereof. (j) The Bonds have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Bonds have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, the Bonds will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the qualifications set forth in (i) and (ii) of Section 6(h) of this Agreement. On the Closing Date, the Bonds will conform as to legal matters to the description thereof contained in the Prospectus. (k) Neither the Company nor any of its subsidiaries is in violation of its respective charter documents or by-laws or in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, ~~mortgage, deed of trust~~ loan agreement, ~~bond~~mortgage, ~~debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, and to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties ~~may be~~ are bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (gl) No The execution, delivery and performance of this Agreement and the other Operative Documents, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, (except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws~~laws of the various states), ~~all~~ (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which ~~requirements have been satisfied~~the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties are bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its subsidiaries or their respective properties, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under any agreement or instrument (other than the Indenture) to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties are bound, or (v) result in the termination, suspension or revocation of any Authorization (as defined below) of the Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization. (hm) ~~Except as~~ There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is ~~otherwise expressly~~ or could be a party or to which any of their respective properties are or could be subject that are required to be described in the Registration Statement or ~~Prospectus~~the Prospectus and are not so described; nor are there any statutes, ~~there is neither pending nor~~regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the ~~best~~ Registration Statement that are not so described or filed as required. (n) Neither the Company nor any of its subsidiaries has violated any provision of the ~~Company’s knowledge~~Employee Retirement Income Security Act of 1974, ~~threatened~~as amended ("ERISA"), or any provision of the Foreign Corrupt Practices Act, as amended ("Corrupt Practices Act"), or the rules and regulations promulgated under such statutes, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (o) Neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law, regulation or code relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), except for such violations that, singly or in the aggregate, would not have a Material Adverse Effect. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any ~~action~~capital or operating expenditures required for clean-up, ~~suit~~closure of properties or compliance with Environmental Laws or any Authorization (as defined below), ~~claim~~ any related constraints on operating activities or any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (p) There is no (i) unfair labor practice complaint, grievance or arbitration proceeding pending or threatened against the Company or any of its ~~officers~~ subsidiaries before the National Labor Relations Board or any state or local labor relations board, or (ii) strike, labor dispute, slowdown or stoppage pending or threatened against the Company or any of its ~~properties~~subsidiaries, ~~assets~~ except in the case of both clauses (i) and (ii) for such actions which, singly or ~~rights before~~ in the aggregate, would not have a Material Adverse Effect. (q) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any ~~court~~applicable Environmental Laws, ~~government~~ as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or ~~governmental agency~~ to make any such filing or ~~body~~notice would not, ~~domestic~~ singly or ~~foreign~~in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction ~~over~~ with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are burdensome to the Company or ~~over~~ any of its ~~officers~~ subsidiaries; except where such failure to be valid and in full force and effect or ~~properties~~ to be in compliance, the occurrence of any such event or ~~otherwise which (A) might result in~~ the presence of any ~~material adverse change~~ such restriction would not, singly or in the ~~condition (financial or otherwise)~~aggregate, ~~earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby~~have a Material Adverse Effect. (ir) The ~~Certificates~~ Company has good and marketable title to ~~be sold hereunder~~ each of the Vessels, and all other real property and personal property described in the Prospectus as being owned by ~~the Company have been duly authorized for issuance and sale pursuant to this Agreement and~~it (if any), ~~when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold~~ free and clear of any ~~pledge~~Liens, ~~lien, security interest, encumbrance, claim~~ other than the Liens established pursuant to or ~~equitable interest;~~ permitted by the Indenture. No party other than the Company and ~~no preemptive~~ its subsidiaries has any right, ~~co-sale right, registration right, right of~~ option or first refusal to purchase or ~~other similar right exists with respect to~~ lease any of the ~~Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by~~ Vessels. (s) Each of the Company and ~~the Trustee and is a valid and binding agreement~~ its subsidiaries, as applicable, carries insurance on the ~~part of the Company, enforceable against~~ Vessels in such amounts and covering such risks as is customary for companies engaged in similar businesses. Neither the Company nor any of its subsidiaries has received notice from any insurer that capital improvements or expenditures are necessary or required to be made in ~~accordance with its terms. The Certificates will comply as~~ order to ~~form with all applicable laws~~continue such insurance. (jt) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ LLP ~~which has expressed its opinion~~ is an independent public accountant with respect to ~~certain of~~ the Company and its subsidiaries as required by the Act. (u) The consolidated, historical financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects~~ supplement thereto), together with related schedules and notes, present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated therein at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; ~~and~~ the supporting ~~schedules~~ schedules, if any, included in the Registration Statement present fairly in accordance with generally accepted accounting principles the information required to be stated therein~~. The selected~~ ; and ~~summary~~ the other financial ~~included~~ and statistical information and data set forth in the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference~~supplement thereto) ~~present fairly the information shown therein~~ are, in all material respects, accurately presented and ~~have been compiled~~ prepared on a basis consistent with ~~the audited~~ such financial statements ~~presented therein. No other financial statements~~ and the books and records of the Company. (v) The Company is not and, after giving effect to the offering and sale of the Bonds and the application of the net proceeds thereof as described in the Prospectus, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. (w) There are no contracts, agreements or ~~schedules are required by~~ understandings between the ~~Securities~~ Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the ~~Rules and Regulations~~ Company to ~~be included in~~ include such securities with the Bonds registered pursuant to the Registration Statement. (kx) ~~Subsequent~~ No "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company's retention of any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering (A) the downgrading, suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (B) any change in the outlook for any rating of the Company or any securities of the Company. (y) Since the respective dates as of which information is given in the ~~Registration Statement and~~ Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the ~~Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted.~~ Prospectus (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration exclusive of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undamendment

Appears in 1 contract

Sources: Underwriting Agreement (Midland Enterprises Inc /De/)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared by~~ declared effective under the ~~Company in conformity with the requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any~~ the Preliminary Prospectus or ~~requiring~~ the ~~recirculation~~ effectiveness of ~~a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if~~ the Registration Statement has been ~~declared effective), or~~ issued and no proceedings for such purpose have been instituted or, to the Company~~’s knowledge~~'s knowledge after due inquiry, are threatened by the ~~institution of~~Commission; the Preliminary Prospectus, ~~proceedings for any~~ at the time of ~~such purposes. When~~ filing thereof, complied in all material respects to the requirements of the Act; the Registration Statement ~~shall become effective and~~ complied when ~~any post-effective amendment thereto shall become~~ it became effective, complies and will comply, at the time of purchase and any additional time of purchase, in all material respects with the requirements of the Act and the Prospectus will comply, as of its date and at the time of purchase and any additional times of purchase, in all material respects with the requirements of the Act; the conditions to the use of Form S-3 have been satisfied; the Registration Statement ~~will not or~~ did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, 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 and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, 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, in light of the circumstances in under which they were made, not misleading~~. When~~ ; provided, however, that the Company makes no warranty or representation with respect to any statement contained in the Registration Statement is or ~~was declared effective~~ the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the ~~Commission and at all times subsequent thereto until~~ Company expressly for use in the ~~termination of~~ Registration Statement or the ~~offering~~Prospectus; the documents incorporated by reference in the Preliminary Prospectus, the ~~Prospectus (as amended~~ Registration Statement and the Prospectus, at the time they became effective or ~~supplemented, if the Company shall have~~ were filed with the ~~Commission any amendment thereof~~ Commission, complied in all material respects with the requirements of the Act or ~~supplement thereto)~~ the Exchange Act, as applicable; and the Company has not distributed and will not distribute any offering material in connection with the offering or ~~did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light~~ sale of the ~~circumstances in which they were made~~Shares other than the Registration Statement, ~~not misleading~~the Preliminary Prospectus and the Prospectus. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to ~~own, lease and operate its properties and conduct~~ carry on its business as described in the Registration Statement and ~~Prospectus. The Company~~ the Prospectus and to own, lease and operate its properties, and each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (c) As of the date of this Agreement, the Company has an authorized and ~~no proceeding has~~ outstanding capitalization as set forth under the heading "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the time of purchase the Company shall have an authorized and outstanding capitalization as set forth under the heading "As adjusted for this offering" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all outstanding shares of capital stock of the Company have been ~~instituted in~~ duly authorized and validly issued and are fully paid, non-assessable and not subject to any ~~such jurisdiction revoking, limiting~~ preemptive or ~~curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~similar rights. (d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the Registration Statement or the Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (e) This Agreement has ~~operated~~ been duly authorized, executed and ~~is operating~~ delivered by the Company. (f) The Shares have been duly authorized and, when issued and delivered against payment therefor as provided herein, will have been duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The capital stock of the Company, including the Shares, will conform in all material ~~compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary~~ respects to ~~own its properties and to conduct its business as described~~ the description thereof contained in the Registration Statement and the Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (eg) ~~The~~ Neither the Company nor any of its subsidiaries is ~~not~~ (x) in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gh) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the issuance and sale of the Shares and the consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company~~ (other than registration of the ~~transactions herein contemplated~~Shares under the Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the NASD), ~~threatened~~(ii) conflict with or constitute a breach of any of the terms or provisions of, ~~any action~~or a default under, ~~suit, claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties~~subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, ~~assets~~ or, in the case of this clause (iii), which violation or ~~rights before~~ default could reasonably be expected to have a Material Adverse Effect, (iv) violate or conflict with any ~~court~~applicable law or any rule, ~~government~~ regulation, judgment, order or decree of any court or any governmental body or agency ~~or body, domestic or foreign,~~ having jurisdiction over the Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or ~~over~~ any of its ~~officers~~ subsidiaries is a party or ~~properties~~ by which the Company or ~~otherwise~~ any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, or (Avi) ~~might~~ result in the termination, suspension or revocation of any ~~material adverse change in the condition~~ Authorization (~~financial or otherwise), earnings, operations or business~~ as defined below) of the Company or ~~might materially and adversely affect~~ any of its ~~properties, assets~~ subsidiaries or ~~rights, or (B) might prevent consummation~~ result in any other impairment of the ~~transactions contemplated hereby~~rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply Except as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (j) Except as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (k) Except as set forth in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (l) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (m) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (n) The accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and supporting schedules as of December 31, 2002 and December 31, 2001 and for each of the two years in the period ended December 31, 2002, included and incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company, as required by the Act and the Exchange Act, and Arthur Andersen LLP, who have certified the consolidated financial s▇▇▇▇▇▇n▇▇ ▇▇▇ ▇he year ended December 31, 2000, included and incorporated by reference in the Offering Memorandum, were, at the time of the certification, independent public accountants with respect to the Company, as required by the Act and the Exchange Act. (o) The historical financial statements, together with related schedules and notes forming part of the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects with~~ supplement thereto), present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated in the Registration Statement and the Prospectus at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in compliance with the requirements of the Act and in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; the other financial and ~~the supporting schedules included~~ statistical information and data set forth in the Registration Statement ~~present fairly~~ and the ~~information required to be stated therein. The selected~~ Prospectus (and ~~summary financial included~~ any amendment or supplement thereto) are, in ~~the Registration Statement (or incorporated therein by reference) present fairly the information shown therein~~ all material respects, accurately presented and ~~have been compiled~~ prepared on a basis consistent with ~~the audited~~ such financial statements ~~presented therein. No other~~ and the books and records of the Company; there are no financial statements ~~or schedules~~ that are required ~~by the Securities Act or the Rules and Regulations~~ to be included in the Registration ~~Statement~~Statement and the Prospectus that are not included as required; and the Company and its subsidiaries do not have any liabilities or obligations, direct or contingent (including any off-balance sheet obligations) that would result in a Material Adverse Effect, not disclosed in the Registration Statement and the Prospectus. (kp) The Company is not, and, after giving effect to the offering and sale of the Shares and the application of the net proceeds thereof as described in the Prospectus, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. (q) No "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company's retaining any rating assigned to the Company or any securities of the Company. (r) Subsequent to the respective dates as of which information is given in the Registration Statement and ~~Prospectus, except as is otherwise disclosed in~~ the ~~Registration Statement~~ Prospectus (exclusive of any amendments or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material supplements thereto subsequent to the ~~Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course~~ date of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwisethis Agreement), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement ~~and~~ or the Prospectus, ~~the Company owns or leases all such properties as are necessary to its operations as now conducted.~~ (mi) ~~The Company was organized and~~ there has ~~been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has~~ not occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a any material adverse ~~effect on~~ change or any development involving a prospective material adverse change in the ~~condition (~~condition, financial or otherwise), or the earnings, ~~operations~~business, ~~business~~ management or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations ~~or business~~ of the Company and ~~the Company~~ its subsidiaries, taken as a whole, (ii) there has not ~~received~~ occurred any ~~notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect~~ transaction which is material to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and ~~each entity that owns or possesses real property in which the Company holds~~ its subsidiaries, taken as a ~~security interest is in material compliance with all material rules~~whole, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) ~~the Company will~~ there has not ~~be required to make~~ been any ~~future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased~~ change or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undany

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Appears in 1 contract

Sources: Stock Purchase Agreement (Dobson Communications Corp)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No~~has been declared effective by the Commission under the Securities Act. ~~) with respect~~ The Company has complied to the ~~Certificates~~Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, ~~including~~ to the best knowledge of the Company, are contemplated or threatened by the Commission. Each Preliminary Prospectus and the Prospectus ~~subject to completion, has been prepared by the Company~~ when filed complied in ~~conformity~~ all material respects with the ~~requirements~~ Securities Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Common Shares. The Registration Statement complies, and any post-effective amendment thereto and any Rule 462(b) Registration Statement will comply, in all material respects with the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement as amended and supplemented by the Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto ~~shall become effective~~and any Rule 462(b) Registration Statement do not and will not, as of the applicable effective date as to the Registration Statement, any post-effective amendment thereto and any Rule 462(b) Registration Statement ~~will not or did not~~ contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading. ~~When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering~~The Prospectus, ~~the Prospectus (~~as amended or supplemented, if as of its date, and any further supplements to the ~~Company shall have filed with~~ Prospectus, as of the ~~Commission~~ applicable filing date as to any ~~amendment thereof or supplement thereto)~~ such supplement, do not and will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any post-effective amendment thereto or any Rule 462(b) Registration Statement or the Prospectus or any supplement thereto made in reliance upon and in conformity with written information furnished to the Company in writing by or on behalf of the Representatives specifically for inclusion therein, which information consists solely of the information set forth in the letter referred to in Section 6(e). There are no contracts or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. (b) The Company has delivered to each Representative one photocopy of a complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and Preliminary Prospectuses and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters. (c) ~~The~~ Each of the Company and its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Minnesota, with full~~ its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Registration Statement and~~ Prospectus. ~~The~~ Each of the Company and each Subsidiary is duly qualified as a foreign corporation to do transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or ~~lease~~ leasing of ~~its properties~~ property or the conduct of ~~its business requires~~ business, except for such ~~qualification and in which~~ jurisdictions where the failure to so qualify or to be ~~qualified or~~ in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). All of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. (d) The Common Shares to be purchased by the Underwriters from the Company have been duly and validly authorized and reserved for issuance and sale pursuant to this Agreement and are free of any preemptive or similar rights, and, when issued and delivered by the Company pursuant to this Agreement, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims and will conform to the descriptions thereof in the Prospectus. (e) The Company has all requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder; this Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (f) The execution, delivery and performance of this Agreement by the Company and the issuance of the Common Shares and the consummation of the transactions contemplated hereby have been authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary (as defined in Section 13) pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except for such conflicts, breaches, violations or defaults as would not, either individually or in the aggregate, have a material adverse effect on the ~~condition (~~consolidated financial ~~or otherwise)~~position, ~~earnings~~stockholders’ equity, results of operations or business of the ~~Company~~Company and its subsidiaries taken as a whole (such effect, ~~and no proceeding has been instituted~~ a “Material Adverse Effect”); nor will such action result in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of (i) any applicable law, ~~order~~statute, rule, regulation, ~~writ~~judgment, ~~injunction~~order, ~~judgment~~ writ or decree of any ~~court~~government, government instrumentality or ~~governmental agency or body~~court, domestic or foreign, having jurisdiction over the Company or ~~over its properties. (e) The Company is not in violation~~ any of its ~~articles~~ Significant Subsidiaries (as defined in Section 13) or any of ~~incorporation~~ their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect) or (ii) the provisions of the charter or bylaws of the Company or ~~in default in~~ any of its Subsidiaries. As used herein, a “Repayment Event” means any event or condition that gives the ~~performance or observance~~ holder of any ~~obligation~~note, ~~agreement, covenant or condition contained in any bond, debenture, note~~ debenture or other evidence of indebtedness of the Company or in any ~~contract~~Significant Subsidiary (or any person acting on such holder’s behalf) the right to require the repurchase, ~~lease, indenture, mortgage, loan agreement, joint venture~~ redemption or ~~other agreement~~ repayment of all or ~~instrument to which it is~~ a ~~party~~ portion of such indebtedness by the Company or ~~by which it or its properties are bound~~any Significant Subsidiary. (fg) ~~The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by~~ Neither the Company ~~and~~ nor any of its Subsidiaries is ~~a valid and binding agreement on the part of the Company, enforceable against the Company~~ in ~~accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or~~ violation of ~~any~~ its charter or by-laws or in default (or, with the giving of ~~the terms and provisions of~~notice or lapse of time, ~~or constitute a default under: (i~~would be in default) under any indenture, mortgage, deed of ~~trust~~ trust, loan ~~agreement, bond, debenture, note,~~ agreement ~~or other evidence of indebtedness, any lease, contract, joint venture~~ or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its ~~properties~~ Subsidiaries may be bound~~; (ii) the articles of incorporation~~ , or ~~bylaws~~ to which any of the ~~Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment~~ property or ~~decree~~ assets of ~~any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ the Company or ~~over~~ any of its ~~properties~~Subsidiaries is subject, except for such violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect. (gh) Except as described in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the Registration Statement. (i) No consent, approval, authorization or order of of, or ~~qualification with~~ filing or registration with, any ~~court,~~ court or governmental agency or ~~body, domestic or foreign, having jurisdiction over the Company or over its properties~~ body is required for the ~~execution~~ execution, delivery and ~~delivery~~ performance of this Agreement by the Company, and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby, except such as has been, or will be prior to the applicable Delivery Date (as defined herein) obtained or made under the Securities Act and as required by the state securities or “blue sky” laws. (ij) The ~~Certificates to be sold hereunder by~~ authorized, issued and outstanding capital stock of the Company ~~have~~ is as set forth in the Prospectus; since the date indicated in the Prospectus, except as disclosed in the Prospectus or changes occurring in the ordinary course of business, there has been ~~duly authorized for issuance~~ no change in the consolidated capitalization of the Company and ~~sale pursuant to this Agreement and~~its subsidiaries (other than changes in outstanding common stock resulting from employee or director benefit plans, ~~when~~ including the Company’s deferred compensation plan, dividend reinvestment and stock purchase or stock option plans, in each case existing on the date hereof (collectively, the “Stock Plans”)); all of the issued and ~~delivered against payment therefor in accordance with~~ outstanding capital stock of the ~~terms of this Agreement, will be duly~~ Company has been authorized and validly ~~issued and~~ issued, is fully paid and non-assessable and ~~will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest~~conforms to the description thereof contained in the Prospectus; and no ~~preemptive right~~holder thereof is or will be subject to personal liability by reason of being such a holder. (k) Except as disclosed in the Prospectus, ~~co-sale right~~(i) there are no outstanding securities convertible into or exchangeable for, ~~registration right~~or warrants, ~~right of first refusal~~ rights or ~~other similar right exists with respect to any of the Certificates to be sold hereunder~~ options issued by the Company to purchase, any shares of the capital stock of the Company, (ii) there are no statutory, contractual, preemptive or other rights to subscribe for or to purchase any Common Stock and (iii) there are no restrictions upon transfer of the ~~issuance~~ Common Stock pursuant to the Company’s certificate of incorporation or bylaws. (l) The Company is not, and after giving effect to the offering and sale ~~thereof~~of the Common Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (m) Each of the Company’s Subsidiaries that is engaged in the business of insurance or reinsurance (each an “Insurance Subsidiary”, collectively the “Insurance Subsidiaries”) is duly licensed to conduct an insurance or a reinsurance business, as the case may be, under the insurance statutes of each jurisdiction in which the conduct of its business requires such licensing, except for such jurisdictions in which the failure of the Insurance Subsidiaries to be so licensed would not, individually or in the aggregate, result in a Material Adverse Effect. The ~~Indenture~~ Insurance Subsidiaries have made all required filings under applicable insurance statutes in each jurisdiction where such filings are required, except for such jurisdictions in which the failure to make such filings would not, individually or in the aggregate, result in a Material Adverse Effect. Each of the Insurance Subsidiaries has ~~been duly authorized~~all other necessary authorizations, ~~executed~~ approvals, orders, consents, certificates, permits, registrations and ~~delivered~~ qualifications of and from all insurance regulatory authorities necessary to conduct their respective businesses as described in the Prospectus, except where the failure to have such authorizations, approvals, orders, consents, certificates, permits, registrations or qualifications would not, individually or in the aggregate, result in a Material Adverse Effect, and the Company and each of its Insurance Subsidiaries has not received any notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, certificate, permit, registration or qualification is needed to be obtained by the Company and each of its Insurance Subsidiaries in any case where it could be reasonably expected that (x) the ~~Trustee~~ Company and each of its Insurance Subsidiaries would be required either to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or to cease or otherwise limit the writing of certain business and (y) the failure to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or the limiting of the writing of such business would result in a Material Adverse Effect and no insurance regulatory authority having jurisdiction over the Company or any of its Insurance Subsidiaries has issued any order or decree impairing, restricting or prohibiting (i) the payment of dividends by any of the Insurance Subsidiaries to its parent, other than those restrictions applicable to insurance or reinsurance companies generally, or (ii) the continuation of the business of the Company or any of the Insurance Subsidiaries in all material respects as presently conducted. (n) Except as disclosed in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a ~~valid~~ party or of which any property or assets of the Company or any of its Subsidiaries is the subject which, singularly or in the aggregate, would be reasonably likely to have a Material Adverse Effect, and ~~binding agreement on~~ to the ~~part~~ best knowledge of the Company, ~~enforceable against~~ no such proceedings are threatened or contemplated by governmental authorities or threatened by others, except as would not, singly or in the ~~Company in accordance with its terms. The Certificates will comply as~~ aggregate, be reasonably likely to ~~form with all applicable laws~~have a Material Adverse Effect. (jo) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~The Company and each of its Subsidiaries have filed all necessary federal, ~~LLP~~ state, local and foreign income and franchise tax returns required to be filed through the date hereof and have paid all taxes due thereon except for taxes being contested in good faith for which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply reserves in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been ~~compiled on~~ provided, and no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had (nor does the Company or any of its Subsidiaries have any knowledge of any tax deficiency which, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have) a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration StatementMaterial Adverse Effect. (kp) ~~Subsequent~~ No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation“Code”)) or ~~material increase~~ “accumulated funding deficiency” (as defined in ~~the short-term debt~~ Section 302 of ERISA) or any of the ~~Company;~~ events set forth in Section 4043(b) of ERISA (iiother than events with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has occurred with respect to any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property employee benefit plan of the Company or any of its Subsidiaries which could reasonably ~~could~~ be expected to have a ~~material adverse effect on~~ Material Adverse Effect; each such employee benefit plan is in compliance with applicable law, including ERISA and the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by itCode, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all where such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, non-compliance could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected ~~to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company~~ to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains have a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) Material Adverse Effect; the Company and each ~~entity that owns~~ of its Subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to the termination of, or ~~possesses real property in~~ withdrawal from, any pension plan for which the Company ~~holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal~~ or any of ~~toxic substances and protection of health~~ its Subsidiaries would have any liability or ~~the environment (the “Environmental Laws”) which are applicable to its business;~~ (ii) Sections 412, 4971, 4975 or 4980B of the ~~Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement~~ Code; and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undeach such pensio

Appears in 1 contract

Sources: Underwriting Agreement (Pmi Group Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared~~ declared effective by ~~the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with~~ the Commission under the Securities Act~~. (b) As~~ . The Company has complied to the Commission's satisfaction with all requests of the ~~Effective Date, and at all times subsequent thereto until~~ Commission for additional or supplemental information. No stop order suspending the ~~termination~~ effectiveness of ~~the Offering,~~ the Registration Statement is in effect and ~~Prospectus~~no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. Each Preliminary Prospectus and the Prospectus when filed complied in all ~~amendments thereof and supplements thereto, will comply or complied~~ material respects with ~~the provisions and requirements of~~ the Securities Act and the ~~Rules and Regulations. Neither~~ Trust Indenture Act of 1939, as amended (the ~~Commission nor any state securities authority has issued any order preventing or suspending~~ "TRUST INDENTURE ACT"), and, if filed by electronic transmission pursuant to EDGAR (except as may be permitted by Regulation S-T under the ~~use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus~~Sec▇▇▇▇▇es Act), ~~or issued a stop order with respect~~ was identical to the ~~offering~~ copy thereof delivered to the Underwriters for use in connection with the offer and sale of the ~~Certificates (if the~~ Designated Securities. The Registration Statement ~~has been declared effective)~~complies, ~~or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective~~ and ~~when~~ any post-effective amendment thereto ~~shall become effective~~will comply, in all material respects with the Securities Act and the Trust Indenture Act, and the Registration Statement as amended and supplemented by the Prospectus, and any post-effective amendment thereto do not and will ~~not~~ not, as of the applicable effective date as to the Registration Statement, or ~~did not~~ any post-effective amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading. ~~When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering~~The Prospectus, ~~the Prospectus (~~as amended or supplemented, if as of its date, and any further supplements to the ~~Company shall have filed with~~ Prospectus, as of the ~~Commission~~ applicable filing date as to any ~~amendment thereof or supplement thereto)~~ such supplement, do not and will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any post-effective amendment thereto or the Prospectus or any supplement thereto made in reliance upon and in conformity with written information furnished to the Company in writing by or on behalf of the Representatives specifically for inclusion therein, which information consists solely of the information set forth in the letter referred to in Section 6(e), or to information which shall constitute the Statement of Eligibility under the Trust Indenture Act (Form T-1) of the Trustee under the Indenture. There are no contracts or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. (b) The Company has delivered to each Representative one photocopy of a complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and Preliminary Prospectuses and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters. (c) The Company has not distributed and will not distribute, prior to the later of the Optional Delivery Date (as defined below) and the completion of the Underwriters' distribution of the Units, any offering material in connection with the offering and sale of the Units other than a Preliminary Prospectus, the Prospectus as the Registration Statement. (d) Each of the Company and its Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Minnesota, with full~~ its incorporation and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the ~~Registration Statement and~~ Prospectus~~, all of which are, to the Company’s knowledge, valid and in full force and effect~~. The Company ~~is conducting its business~~ does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in ~~substantial compliance with all applicable laws, rules and regulations~~ Exhibit 21 of the ~~jurisdictions in which it~~ Company's Annual Report on Form 10-K for the fiscal year ended January 29, 2004, each such entity referred to as a "Subsidiary". Except for American Stores Company and JS USA Holdings Inc., none of the Company's subsidiaries is ~~conducting business, and~~ a "significant subsidiary" of the Company ~~is not~~ as defined in ~~material violation~~ Rule 1-02 of ~~any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ Regulation S-X under the ~~Company or over its properties~~Securities Act. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has ~~full~~ all requisite corporate power and authority to ~~enter into~~ execute and deliver this Agreement and perform ~~the transactions contemplated hereby. This~~ its obligations hereunder; this Agreement has been duly authorized, executed and delivered by the Company. (f) The Company has all requisite corporate power and is authority to execute and deliver each of the Unit Agreements and perform its obligations thereunder; each of the Unit Agreements has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the occurrence of a Termination Event (as defined in the Purchase Contract), Title 11 of the United States Code (the "BANKRUPTCY CODE") should not substantively limit the provisions of the Purchase Agreement or the Pledge Agreement that require termination of the Purchase Contracts and release of the Collateral Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities (as defined in the Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), as applicable, and the transfer of such securities to the Purchase Contract Agent, for the benefit of the Holders of the Units (as defined in the Prospectus); provided further, that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and remedies contained in Section 5.06 of the Purchase Agreement and Section 5.04 of the Pledge Agreement. Each of the Unit Agreements conforms in all material respects to the description thereof contained in the Prospectus. (g) The Company has all requisite corporate power and authority to execute and deliver the Remarketing Agreement and perform its obligations thereunder; the Remarketing Agreement has been duly authorized and, on the ~~part~~ First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and except as any rights to indemnification, contribution or exculpation thereunder may be limited by principles of public policy, statutory duties and applicable securities laws. The Remarketing Agreement conforms in all material respects to the description thereof contained in the Prospectus. (h) The Company has all requisite corporate power and authority to execute and deliver the Supplemental Indenture and perform its obligations thereunder; the Supplemental Indenture has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company and qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery of the Supplemental Indenture by the Trustee, the Supplemental Indenture will constitute a legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The ~~performance of this Agreement and~~ Supplemental Indenture conforms in all material respects to the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described description thereof contained in the ~~Registration Statement or~~ Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The ~~Certificates to be sold hereunder by the Company~~ Senior Notes have been duly authorized ~~for issuance and sale pursuant to this Agreement~~ and, on the First Delivery Date, will have been duly executed by the Company, and, when ~~issued~~ the Senior Notes are authenticated by the Trustee in accordance with the Indenture and delivered against payment therefor in accordance with ~~the terms of~~ this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a constitute legally valid and binding ~~agreement~~ obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Senior Notes will conform in all material respects to the description thereof contained in the Prospectus. (j) The Designated Securities have been duly authorized and, on the ~~part~~ First Delivery Date, will have been duly executed by the Company, and, when the Designated Securities are authenticated by the Purchase Contract Agent in accordance with the Purchase Agreement and delivered against payment therefor in accordance with this Agreement, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with ~~its~~ their terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as ~~is otherwise disclosed in~~ the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement enforceability thereof may be limited by ~~applicable~~ bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and other similar laws relating to or affecting creditors’ ' rights ~~generally or by judicial~~ generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the ~~right~~ occurrence of ~~specific performance; and~~ a Termination Event (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the ~~Exchange Act or otherwise~~Purchase Contract), the Bankruptcy Code should not substantively limit the provisions of the ~~price of any security~~ Purchase Agreement or the Pledge Agreement that require termination of the ~~Company to facilitate the sale or resale~~ Purchase Contracts and release of the ~~Certificates. The Company has not distributed and will not distribute prior to~~ Collateral Agent's security interest in (1) the ~~completion of~~ Senior Notes, (2) the ~~distribution of~~ Treasury Securities (as defined in the ~~Certificates~~Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorizationapplicable, and the ~~recorded accountability~~ transfer of such securities to the Purchase Contract Agent, for ~~assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.~~ the benefit of the Holders of the Units (~~r) Except~~ as ~~set forth~~ defined in the ~~Registration Statement and~~ Prospectus~~: (i)~~ ); provided further, that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and ~~each entity that owns or possesses real property~~ remedies contained in ~~which~~ Section 5.06 of the ~~Company holds a security interest is in material compliance with all material rules, laws~~ Purchase Agreement and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undSection 5.04

Appears in 1 contract

Sources: Underwriting Agreement (Albertsons Inc /De/)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared by~~ declared effective under the ~~Company in conformity with the requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any~~ the Preliminary Prospectus or ~~requiring~~ the ~~recirculation~~ effectiveness of ~~a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if~~ the Registration Statement has been ~~declared effective), or~~ issued and no proceedings for such purpose have been instituted or, to the Company~~’s knowledge~~'s knowledge after due inquiry, are threatened by the ~~institution of~~Commission; the Preliminary Prospectus, ~~proceedings for any~~ at the time of ~~such purposes. When~~ filing thereof, complied in all material respects to the requirements of the Act; the Registration Statement ~~shall become effective and~~ complied when ~~any post-effective amendment thereto shall become~~ it became effective, complies and will comply, at the time of purchase and any additional time of purchase, in all material respects with the requirements of the Act and the Prospectus will comply, as of its date and at the time of purchase and any additional times of purchase, in all material respects with the requirements of the Act; the conditions to the use of Form S-3 have been satisfied; the Registration Statement ~~will not or~~ did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, 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 and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, 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, in light of the circumstances in under which they were made, not misleading~~. When~~ ; provided, however, that the Company makes no warranty or representation with respect to any statement contained in the Registration Statement is or ~~was declared effective~~ the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the ~~Commission and at all times subsequent thereto until~~ Company expressly for use in the ~~termination of~~ Registration Statement or the ~~offering~~Prospectus; the documents incorporated by reference in the Preliminary Prospectus, the ~~Prospectus (as amended~~ Registration Statement and the Prospectus, at the time they became effective or ~~supplemented, if the Company shall have~~ were filed with the ~~Commission any amendment thereof~~ Commission, complied in all material respects with the requirements of the Act or ~~supplement thereto)~~ the Exchange Act, as applicable; and the Company has not distributed and will not distribute any offering material in connection with the offering or ~~did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light~~ sale of the ~~circumstances in which they were made~~Shares other than the Registration Statement, ~~not misleading~~the Preliminary Prospectus and the Prospectus. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to ~~own, lease and operate its properties and conduct~~ carry on its business as described in the Registration Statement and ~~Prospectus. The Company~~ the Prospectus and to own, lease and operate its properties, and each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (c) As of the date of this Agreement, the Company has an authorized and ~~no proceeding has~~ outstanding capitalization as set forth under the heading "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the time of purchase the Company shall have an authorized and outstanding capitalization as set forth under the heading "As adjusted for this offering" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all outstanding shares of capital stock of the Company have been ~~instituted in~~ duly authorized and validly issued and are fully paid, non-assessable and not subject to any ~~such jurisdiction revoking, limiting~~ preemptive or ~~curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~similar rights. (d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the Registration Statement or the Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (e) This Agreement has ~~operated~~ been duly authorized, executed and ~~is operating~~ delivered by the Company. (f) The Shares have been duly authorized and, when issued and delivered against payment therefor as provided herein, will have been duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The capital stock of the Company, including the Shares, will conform in all material ~~compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary~~ respects to ~~own its properties and to conduct its business as described~~ the description thereof contained in the Registration Statement and the Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (eg) ~~The~~ Neither the Company nor any of its subsidiaries is ~~not~~ (x) in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gh) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the issuance and sale of the Shares and the consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus (including the related financing transactions) will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company~~ (other than registration of the ~~transactions herein contemplated~~Shares under the Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the NASD), ~~threatened~~(ii) conflict with or constitute a breach of any of the terms or provisions of, ~~any action~~or a default under, ~~suit, claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties~~subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, ~~assets~~ which violation or ~~rights before~~ default could reasonably be expected to have a Material Adverse Effect, (iv) violate or conflict with any ~~court~~applicable law or any rule, ~~government~~ regulation, judgment, order or decree of any court or any governmental body or agency ~~or body, domestic or foreign,~~ having jurisdiction over the Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or ~~over~~ any of its ~~officers~~ subsidiaries is a party or ~~properties~~ by which the Company or ~~otherwise~~ any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, or (Avi) ~~might~~ result in the termination, suspension or revocation of any ~~material adverse change in the condition~~ Authorization (~~financial or otherwise), earnings, operations or business~~ as defined below) of the Company or ~~might materially and adversely affect~~ any of its ~~properties, assets~~ subsidiaries or ~~rights, or (B) might prevent consummation~~ result in any other impairment of the ~~transactions contemplated hereby~~rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply Except as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (j) Except as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (k) Except as set forth in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (l) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (m) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (n) The accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and supporting schedules as of December 31, 2004 and December 31, 2003 and for each of the three years in the period ended December 31, 2004, included and incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company, as required by the Act and the Exchange Act. (o) The historical financial statements, together with related schedules and notes forming part of the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects with~~ supplement thereto), present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated in the Registration Statement and the Prospectus at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in compliance with the requirements of the Act and in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; the other financial and ~~the supporting schedules included~~ statistical information and data set forth in the Registration Statement ~~present fairly~~ and the ~~information required to be stated therein. The selected~~ Prospectus (and ~~summary financial included~~ any amendment or supplement thereto) are, in ~~the Registration Statement (or incorporated therein by reference) present fairly the information shown therein~~ all material respects, accurately presented and ~~have been compiled~~ prepared on a basis consistent with ~~the audited~~ such financial statements ~~presented therein. No other~~ and the books and records of the Company; there are no financial statements ~~or schedules~~ that are required ~~by the Securities Act or the Rules and Regulations~~ to be included in the Registration ~~Statement~~Statement and the Prospectus that are not included as required; and the Company and its subsidiaries do not have any liabilities or obligations, direct or contingent (including any off-balance sheet obligations) that would result in a Material Adverse Effect, not disclosed in the Registration Statement and the Prospectus. (kp) The Company is not, and, after giving effect to the offering and sale of the Shares and the application of the net proceeds thereof as described in the Prospectus, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. (q) No "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise), other than any condition requiring the consummation of the Refinancing Plan (as described in the Prospectus) or any component thereof, on the Company's retaining any rating assigned to the Company or any securities of the Company. (r) Subsequent to the respective dates as of which information is given in the Registration Statement and ~~Prospectus, except as is otherwise disclosed in~~ the ~~Registration Statement~~ Prospectus (exclusive of any amendments or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material supplements thereto subsequent to the ~~Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course~~ date of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwisethis Agreement), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement ~~and~~ or the Prospectus, ~~the Company owns or leases all such properties as are necessary to its operations as now conducted.~~ (mi) ~~The Company was organized and~~ there has ~~been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has~~ not occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a any material adverse ~~effect on~~ change or any development involving a prospective material adverse change in the ~~condition (~~condition, financial or otherwise), or the earnings, ~~operations~~business, ~~business~~ management or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations ~~or business~~ of the Company and its subsidiaries, taken as a whole, (ii) there has not occurred any transaction which is material to the Company and its subsidiaries, taken as a whole, (iii) there has not ~~received~~ been any ~~notice of, and has no knowledge of,~~ change or any ~~infringement of or conflict with~~ development involving a prospective material adverse change in the ~~asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly~~ capital stock or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security long-term debt of the Company ~~to facilitate the sale~~ or ~~resale~~ any of ~~the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates~~its subsidiaries, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) ~~no property which is owned, leased or occupied by the Company or in which the Company holds a security interest~~ there has not been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undany dividen

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents~~ (as of the date hereof and the Closing Date) represents, warrants to and agrees ~~with the Underwriter~~ as follows~~, which representations~~ : The Preliminary Offering Memorandum and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion, has Offering Memorandum have been prepared by the Company for use by the Initial Purchaser in ~~conformity~~ connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act, ~~and the Rules and Regulations of the Commission thereunder and~~ has been ~~filed with the Commission under the Securities Act. (b) As of the Effective Date,~~ issued and ~~at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply~~ no proceeding for that purpose has commenced or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted is pending or, to the knowledge of the Company~~’s knowledge~~, ~~threatened~~ is contemplated. The Preliminary Offering Memorandum and the ~~institution of~~Offering Memorandum as of their respective dates did not, ~~proceedings for any~~ and the Offering Memorandum as of ~~such purposes. When~~ the ~~Registration Statement shall become effective and when any post-effective amendment thereto shall become effective~~Closing Date will not, ~~the Registration Statement will not or did not~~ contain ~~any~~ an untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or necessary~~ necessary, in order to make the statements contained therein, in light of the circumstances in under which they were made, not misleading. ~~When~~ The market-related and industry data included in the ~~Registration Statement is or was declared effective~~ Preliminary Offering Memorandum and the Offering Memorandum are based upon estimates by the ~~Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if~~ Company derived from sources which the Company ~~shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required~~ believes to be ~~stated therein or necessary~~ reliable and accurate in ~~order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c)~~ all material respects. The Company ~~has been~~ is a corporation duly incorporated and is validly existing ~~as a corporation~~ and in good standing under the laws of ~~the State of Minnesota,~~ Delaware with ~~full~~ all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the ~~Registration Statement~~ Preliminary Offering Memorandum and ~~Prospectus. The Company~~ the Offering Memorandum, and is duly registered and qualified to do conduct its business and is in good standing in each jurisdiction ~~in which~~ or place where the ~~ownership or lease~~ nature of its properties or the conduct of its business requires such ~~qualification and in which~~ registration or qualification, except where the failure to so register or qualify or to be ~~qualified or~~ in good standing would not reasonably be expected to have a material adverse effect on the ~~condition (~~financial condition, business, properties or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.~~ Company (d) a "MATERIAL ADVERSE EFFECT"). The Company has ~~operated and is operating in material compliance with~~ all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to ~~enter into this Agreement~~ execute, deliver and perform its obligations under this Agreement, the ~~transactions contemplated hereby~~Indentures and the Registration Rights Agreements. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each tranche of the Notes. This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and ~~is a~~ delivery by the Initial Purchaser, constitutes the legally valid and binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its ~~terms~~terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Senior Registration Rights Agreement has been duly authorized by the Company and, upon its execution and delivery by the Company and, assuming due authorization, execution and delivery by the Initial Purchaser, will constitute the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Subordinated Registration Rights Agreement has been duly authorized by the Company and, upon its execution and delivery by the Company and, assuming due authorization, execution and delivery by the Initial Purchaser, will constitute the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) except as rights to indemnity and contribution hereunder may be limited by Federal or state securities laws or principles of public policy. The Senior Note Indenture has been duly authorized by the Company, and upon its execution and delivery by the Company and, assuming due authorization, execution and delivery by the Senior Note Trustee, will constitute the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing; no qualification of the Senior Note Indenture under the Trust Indenture Act of 1939, as amended ("TIA") is required in connection with the offer and sale of the Series A Senior Notes contemplated hereby or in connection with the Exempt Resales other than in connection with the performance of the Company's obligations under the Senior Registration Rights Agreement. The Subordinated Note Indenture has been duly authorized by the Company, and upon its execution and delivery by the Company and, assuming due authorization, execution and delivery by the Subordinated Note Trustee, will constitute the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing; no qualification of the Subordinated Note Indenture under the TIA is required in connection with the offer and sale of the Series A Subordinated Notes contemplated hereby or in connection with the Exempt Resales other than in connection with the performance of the Company's obligations under the Subordinated Registration Rights Agreement. The Series A Senior Notes have been duly authorized by the Company and when duly executed by the Company in accordance with the terms of the Senior Note Indenture and, assuming due authentication of the Series A Senior Notes by the Senior Note Trustee, upon delivery to the Initial Purchaser against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute legally valid and binding obligations of the Company entitled to the benefits of the Senior Note Indenture, enforceable against the Company in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. The Series A Subordinated Notes have been duly authorized by the Company and when duly executed by the Company in accordance with the terms of the Subordinated Note Indenture and, assuming due authentication of the Series A Subordinated Notes by the Subordinated Notes Trustee, upon delivery to the Initial Purchaser against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute legally valid and binding obligations of the Company entitled to the benefits of the Subordinated Note Indenture, enforceable against the Company in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether enforcement is considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. On or before the Closing Date the Series B Senior Notes will have been duly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Senior Note Indenture and delivered in accordance with the Exchange Offer provided for in the Senior Registration Rights Agreement, will constitute legally valid and binding obligations of the Company entitled to the benefits of the Senior Note Indenture, enforceable against the Company in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether enforcement is considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. On or before the Closing Date, the Series B Subordinated Notes will have been duly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Subordinated Note Indenture and delivered in accordance with the Exchange Offer provided for in the Subordinated Registration Rights Agreement, will constitute legally valid and binding obligations of the Company entitled to the benefits of the Subordinated Note Indenture enforceable against the Company in accordance with their terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether enforcement is considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. The senior credit facilities, dated as of May 18, 1998, by and among P&L Coal Holdings Corporation and ▇▇▇▇▇▇ Commercial Paper Inc., as Administrative Agent, Syndication Agent and Documentation Agent, and ▇▇▇▇▇▇ Brothers Inc., as Arranger, (the "CREDIT FACILITIES"), and any and all other agreements and instruments ancillary to or entered into in connection with the transaction contemplated by the credit agreement (the "CREDIT DOCUMENTS"), were duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitute the valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms subject to (i) the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally, (ii) by general equitable principles (whether enforcement is considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. All the shares of capital stock, partnership, membership or other equity interest of the Company outstanding prior to the issuance of each tranche of the Series A Notes have been duly authorized and validly issued and are fully paid and nonassessable. The Company does not own capital stock or other equity interests of any corporation or entity other than as disclosed in the Offering Memorandum. There are no legal or governmental proceedings pending or, to the knowledge of the Company, contemplated by, or threatened, against the Company or to which any of its properties are subject, that are not disclosed in the Offering Memorandum and which, are reasonably likely to have a Material Adverse Effect or to materially and adversely affect the issuance of each tranche of the Notes or the consummation of the other transactions contemplated by the Operative Documents. The Company is not involved in any strike, job action or labor dispute with any group of employees, and, to the knowledge of the Company, no such action or dispute is threatened. No material relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, shareholders, members, partners, customers or suppliers of the Company on the other hand, that would be required to be described in the Offering Memorandum pursuant to Regulation S-K of the Securities Act if Regulation S-K were applicable to the Offering Memorandum, which is not so described in the Offering Memorandum. The execution, delivery and performance of this Agreement and the other Operative Documents and the issuance of each tranche of the Series A Notes and each tranche of the Series B Notes and the consummation of the transactions ~~herein~~ contemplated hereby and thereby will not conflict with, or result in a breach or violation of any of the terms ~~and~~ or provisions of, or (including with the giving of notice or the lapse of time or both) constitute a default ~~under:~~ under (i) any indenture, mortgage, deed of ~~trust~~ trust, loan ~~agreement, bond, debenture, note,~~ agreement ~~or other evidence of indebtedness, any lease, contract, joint venture~~ or other agreement or instrument to which the Company is a party or by which the Company is bound or ~~its~~ to which any of the properties ~~may be bound;~~ or assets of the Company are subject, (ii) the ~~articles of incorporation or bylaws~~ provisions of the ~~Company: or~~ charter, by-laws or other organizational documents of the Company or (iii) any ~~applicable law,~~ statute or any order, ~~rule, regulation, writ, injunction, judgment~~ rule or ~~decree~~ regulation of any ~~court, government~~ court or governmental agency or ~~body, domestic or foreign,~~ body having jurisdiction over the Company or ~~over~~ any of its ~~properties.~~ properties or assets, except in the cases of clause (gi) No or (iii), such breaches, violations or defaults that in the aggregate would not reasonably be expected to have a Material Adverse Effect; and no consent, approval, authorization or order of of, or ~~qualification with~~ filing or registration with, any ~~court,~~ court or governmental agency or ~~body, domestic or foreign, having jurisdiction over the Company or over its properties~~ body is required for the ~~execution~~ execution, delivery and ~~delivery~~ performance of this Agreement and the ~~consummation by~~ other Operative Documents and the ~~Company~~ issuance of each tranche of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best Series A Notes and each tranche of the ~~Company’s knowledge, threatened, any action, suit, claim or proceeding against~~ Series B Notes and the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated ~~hereby.~~ hereby and thereby except (iA) ~~The Certificates to~~ as may be ~~sold hereunder~~ required by the ~~Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor~~ securities or "blue sky" laws of any state of the United States in ~~accordance~~ connection with the ~~terms~~ sale of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any each tranche of the ~~Certificates to be sold hereunder~~ Series A Notes and each tranche of the Series B Notes, and (B) as contemplated by the ~~Company or~~ Registration Rights Agreements and (C) as required under the TIA for the issuance of each tranche of the Series B Notes, and ~~sale thereof~~(D) in connection with trading of the Notes on PORTAL. The ~~Indenture has been duly authorized~~accountants, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ~~▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~& Young LLP, ~~LLP which has expressed its opinion with respect to~~ who have certified certain of the financial statements included as a part ~~(whether filed or incorporated by reference)~~ of the ~~Registration Statement~~Offering Memorandum, ~~is an~~ are independent ~~registered~~ public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are accountants as required by the Securities Act ~~or the~~ and its Rules and ~~Regulations to be included in the Registration Statement~~Regulations. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 1 contract

Sources: Purchase Agreement (P&l Coal Holdings Corp)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees with the ~~Underwriter~~ Initial Purchaser that as ~~follows, which representations and warranties shall be deemed to be made continuously throughout~~ of the ~~term of this Agreement~~date hereof: (a) The ~~Registration Statement on Form S-11 (File No. ) with respect to~~ Memorandum at the ~~Certificates~~date hereof, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Datedoes not, and at ~~all times subsequent thereto until~~ the ~~termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto~~Closing Date, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectusnot, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or~~ necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that the representations and warranties set forth in this Section 1(a) do not apply to statements or omissions in the Memorandum based upon information furnished to the Company in writing by or on behalf of the Initial Purchaser expressly for use therein. ~~When~~ Reference herein to the ~~Registration Statement is or was declared effective~~ Memorandum shall be deemed to refer to and include any document filed by the ~~Commission~~ Company under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), which is incorporated in the Memorandum by reference. (b) It is not required by applicable law or regulation in connection with the offer, sale and ~~at all times subsequent thereto until the termination~~ delivery of the ~~offering~~Notes to you in the manner contemplated by this Agreement to register the Notes under the Securities Act or to qualify the Indenture in respect of the Notes under the Trust Indenture Act of 1939, ~~the Prospectus (~~as amended ~~or supplemented, if~~ (the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading"TRUST INDENTURE ACT"). (c) The Company ~~has~~ and each of its Significant Subsidiaries (as defined in Section 14) have been duly ~~incorporated~~ organized and is are validly existing ~~as a corporation~~ and in good standing under the laws of ~~the State~~ their respective jurisdictions of ~~Minnesota~~organization, ~~with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is~~ are duly qualified to do business and is are in good standing in each jurisdiction in which ~~the~~ their respective ownership or lease of ~~its properties~~ property or the conduct of ~~its business~~ their respective businesses requires such ~~qualification and in which~~ qualification, save where the failure to be so qualified ~~or in good standing~~ would not reasonably be expected to have a material adverse effect on the ~~condition (financial~~ business or ~~otherwise), earnings, operations or business~~ property of the ~~Company~~Company and its subsidiaries taken as a whole, and ~~no proceeding~~ each has ~~been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such~~ all power and authority necessary to own or ~~qualification~~hold their respective properties and to conduct the businesses in which they are engaged. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business an authorized capitalization as ~~described~~ set forth in the ~~Registration Statement~~ Memorandum, and ~~Prospectus,~~ all of ~~which are~~the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the ~~Company’s knowledge~~description thereof contained, ~~valid and~~ or incorporated by reference, in ~~full force and effect. The Company is conducting its business in substantial compliance with~~ the Memorandum; all ~~applicable laws, rules and regulations~~ of the ~~jurisdictions in which it is conducting business~~issued shares of capital stock, ~~and~~ partnership interests or limited liability membership interests, as the case may, be of each Significant Subsidiary of the Company ~~is not~~ have been duly and validly authorized and issued and (except for partnership interests of general partners and except to the extent the limited liability company agreements governing the respective limited liability companies provide otherwise) are fully paid and non-assessable and (except for partnership interests in ~~material violation~~ CapStar Management Company, L.P. and CapStar Management Company II, L.P. owned by third parties) are owned directly or indirectly by the Company, free and clear of ~~any applicable law~~all liens, ~~order~~encumbrances, ~~rule, regulation, writ, injunction, judgment~~ equities or ~~decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties~~claims. (e) The Indenture has been duly authorized and, when duly executed and delivered by the proper officers of the Company (assuming due execution and delivery by the Trustee) and delivered by the Company, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, liquidation, moratorium or other similar laws affecting the rights and remedies of creditors generally and except as may be subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (f) This Agreement has been duly authorized, executed and delivered by the Company and the Registration Rights Agreement has been duly authorized and will be duly delivered and executed by the Company. (g) Except where it would not reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder's equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole, (i) the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes, and the consummation by the Company of the transactions contemplated herein (the "TRANSACTIONS") will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the properties or assets of the Company or any of its Significant Subsidiaries is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its Significant Subsidiaries or any statute or order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, any of its Significant Subsidiaries or any of their properties or assets; and (iii) except for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Notes by the Initial Purchaser, and except for registration of the Exchange Offer (as defined in the Registration Rights Agreement) under the Securities Act and applicable state securities laws, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Transactions. (h) Neither the Company nor any of its Significant Subsidiaries has sustained, since the date of the latest quarterly financial statements included or incorporated by reference in the Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Memorandum. (i) The financial statements (including the related notes and supporting schedules) included in the Memorandum present fairly the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. (j) KPMG Peat Marwick LLP, who have certified certain financial statements of the Company, whose report is included in the Memorandum and who have delivered the initial letter referred to in Section 7(e) hereof, are independent public accountants as required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported contained in the Memorandum. (k) There are no legal or governmental proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of which any property or asset of the Company or any of its Significant Subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, could be expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole; and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others that is required to be disclosed in the Memorandum which is not so disclosed. (l) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other hand, which is required to be disclosed in the Memorandum which is not so disclosed. (m) Since the date as of which information is given in the Memorandum through the date hereof, and except as may otherwise be disclosed in the Memorandum, the Company has not (i) issued or granted any securities, other than in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, or in connection with a dividend reinvestment or stock purchase plan,(ii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations which were incurred in the ordinary course of business,(iii) entered into any transaction not in the ordinary course of business or (iv)in the case of the Company, declared or paid any dividend on its capital stock. (n) Neither the Company nor any of its Significant Subsidiaries (i) is in violation of its ~~articles of incorporation~~ charter or ~~bylaws or~~ by-laws, (ii) is in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any ~~obligation, agreement~~term, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ material indenture, mortgage, deed of trust, loan ~~agreement, joint venture~~ agreement or other agreement or instrument to which it is a party or by which it is bound or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its ~~officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or~~ properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, subject except ~~as is otherwise disclosed in the Registration Statement or Prospectus, there has~~ where it would not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably ~~could~~ be expected to have a material adverse effect on the ~~condition (~~consolidated financial position, stockholder's equity, results of operations, business or ~~otherwise), earnings, operations or business~~ prospects of the ~~Company.~~ Company and its subsidiaries taken as a whole, or (liii) ~~Except as~~ is ~~otherwise expressly disclosed~~ in ~~the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described~~ violation in ~~the Registration Statement or Prospectus as being owned by it, free and clear~~ any material respect of any ~~and all pledges~~law, ~~liens~~ordinance, ~~security interests~~governmental rule, ~~encumbrances~~regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material license, ~~equities~~permit, ~~charges~~ certificate, franchise or ~~claims,~~ other ~~than such as~~ governmental authorization or permit necessary to the ownership of its properties or assets or to the conduct of its business except where it would not reasonably be expected to have a material adverse effect on the ~~condition (~~consolidated financial ~~or otherwise)~~position, ~~earnings~~stockholders' equity, ~~operations or business~~ results of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or ~~properties~~ prospects of the ~~Company,~~ Company and ~~all tax liabilities are adequately provided for in the books of the Company~~its subsidiaries taken as a whole. (o) ~~The~~ Neither the Company ~~owns~~nor any Significant Subsidiary is an "INVESTMENT COMPANY" within the meaning of such term under the Investment Company Act of 1940, ~~or possesses adequate rights to use~~as amended, ~~all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks~~ and ~~proprietary rights or information which are necessary for~~ the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business rules and regulations of the ~~Company~~ Securities and Exchange Commission (the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company"COMMISSION") thereunder. (p) ~~The~~ Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE") has ~~not taken and will not take~~directly, ~~directly~~ or ~~indirectly~~through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any ~~action~~ security (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the ~~Exchange Act~~ Securities Act) which is or ~~otherwise,~~ will be integrated with the sale of the ~~price of any security~~ Notes in a manner that would require the registration under the Securities Act of the ~~Company to facilitate the sale~~ Notes or ~~resale~~ (ii) engaged in any form of ~~the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material~~ general solicitation or general advertising in connection with the offering ~~and sale~~ of the ~~Certificates other than~~ Notes (as those terms are used in Regulation D under the Securities Act), or in any ~~Preliminary Prospectus,~~ manner involving a public offering within the ~~Prospectus, the Registration Statement and other materials, if any, permitted by~~ meaning of Section 4(2) of the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 1 contract

Sources: Purchase Agreement (Capstar Hotel Co)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the --------------------------------------------------------- date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Initial Purchasers that: (a) The ~~Registration Statement on Form S-11~~ Offering Memorandum (~~File No. ) with respect to the Certificates,~~ including the ~~Prospectus subject to completion, has been prepared~~ information incorporated by reference therein (the ~~Company in conformity with the requirements of the Securities Act~~"Incorporated Documents") does not, and ~~the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date~~any supplement or amendment to it will not, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading~~. When~~ , except that the ~~Registration Statement is~~ representations and warranties contained in this paragraph (a) shall not apply to statements in or ~~was declared effective~~ omissions from the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company in writing by the ~~Commission and at all times subsequent thereto until~~ Initial Purchasers expressly for use therein. No stop order preventing the ~~termination~~ use of the ~~offering~~Offering Memorandum, ~~the Prospectus (as amended~~ or ~~supplemented, if the Company shall have filed with the Commission~~ any amendment ~~thereof~~ or supplement thereto~~) will not~~ , or ~~did not contain~~ any ~~untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in~~ order ~~to make the statements therein, in light~~ asserting that any of the ~~circumstances in which~~ transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been received by the Company, and, to the knowledge of the Company, no such stop order or other order has been issued. The Incorporated Documents, at the time they were ~~made~~or hereafter are filed or last amended, ~~not misleading~~as the case may be, with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, ~~and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.~~taken as a whole (a "Material Adverse Effect"). ----------------------- (dc) ~~The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders~~ All outstanding shares of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations capital stock of the ~~jurisdictions in which it is conducting business~~Company have been duly authorized and validly issued and are fully paid, non-assessable and ~~the Company is~~ not ~~in material violation of~~ subject to any ~~applicable law, order, rule, regulation, writ, injunction, judgment~~ preemptive or ~~decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties~~similar rights. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company. (f) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company and is the Trustee, the Indenture will be a valid and binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its ~~terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the~~ terms ~~and provisions of, or constitute a default under:~~ except as (i) ~~any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which~~ the ~~Company is a party or by which the Company or its properties~~ enforceability thereof may be ~~bound;~~ limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the ~~articles~~ availability of ~~incorporation or bylaws~~ equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material respects to the requirements of the ~~Company: or~~ Trust Indenture Act of 1939, as amended (~~iii~~the "TIA" or "Trust Indenture Act"), and the --- ------------------- rules and regulations of the Commission applicable to an indenture which is qualified thereunder, assuming that there exists no "conflicting interest" (as that term is defined in Section 310(b)(3) ~~any applicable law, order, rule, regulation, writ, injunction, judgment or decree~~ of ~~any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ the ~~Company or over its properties~~TIA). (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The ~~Certificates to be sold hereunder by the Company~~ Notes have been duly authorized ~~for issuance and sale pursuant to this Agreement~~ and, ~~when issued~~ on the Closing Date, will have been validly executed and delivered ~~against payment therefor~~ by the Company. When the Notes have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Notes will conform as to legal matters to the description thereof contained in the Offering Memorandum. (h) The Notes are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Offering Memorandum and will be duly authorized for listing on the NYSE, subject to notice of official issuance; the Company has the authorized and ~~validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest~~outstanding capital stock as set forth in the Offering Memorandum; and ~~no preemptive right, co-sale right, registration right, right~~ the stockholders of ~~first refusal~~ the Company or other holders of the Company's securities have no pre-emptive or similar ~~right exists~~ rights with respect to ~~any~~ the Notes or the Common Stock issuable upon conversion of the ~~Certificates to be sold hereunder~~ Notes. (i) The Registration Rights Agreement has been duly authorized by the Company or and, on the ~~issuance~~ Closing Date, will have been duly executed and ~~sale thereof~~delivered by the Company. ~~The Indenture~~ When the Registration Rights Agreement has been duly ~~authorized,~~ executed and delivered by the Company and the ~~Trustee and is~~ other parties thereto, the Registration Rights Agreement will be a valid and binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, terms except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement enforceability thereof may be limited by ~~applicable~~ bankruptcy, ~~insolvency, reorganization, moratorium~~ insolvency or ~~other~~ similar laws ~~relating to or~~ affecting creditors’ ' rights generally ~~or by judicial limitations on~~ and (ii) rights of acceleration and the ~~right~~ availability of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof equitable remedies may be limited by ~~applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right~~ equitable principles of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undgeneral

Appears in 1 contract

Sources: Purchase Agreement (Health Management Associates Inc)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Initial Purchasers that: ~~(a)~~ a. The ~~Registration Statement on Form S-11 (File No. ) with respect to~~ Preliminary Offering Circular and the ~~Certificates~~Offering Circular do not and will not, ~~including~~ as of their respective dates and, in the ~~Prospectus subject to completion, has been prepared by the Company in conformity with the requirements~~ case of the ~~Securities Act~~Offering Circular, ~~and the Rules and Regulations~~ as of the ~~Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective~~ Closing Date, and ~~at all times subsequent thereto until the termination~~ any supplement or amendment to them will not, as of their respective dates and as of the ~~Offering~~Closing Date, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Circular or the Offering Circular (or any supplement or amendment thereto) based upon information relating to an Initial Purchaser furnished to the Company in writing by or on behalf of such Initial Purchaser expressly for use therein. ~~When~~ No stop order preventing the ~~Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ use of the ~~offering~~Preliminary Offering Circular or the Offering Circular, ~~the Prospectus (as amended~~ or ~~supplemented, if the Company shall have filed with the Commission~~ any amendment ~~thereof~~ or supplement thereto~~) will not~~ , or ~~did not contain~~ any ~~untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in~~ order ~~to make the statements therein, in light~~ asserting that any of the ~~circumstances in which they were made~~transactions contemplated by this Agreement are subject to the registration requirements of the Act, ~~not misleading~~has been issued. b. Each of the Company and its subsidiaries (cas defined in Section 6(d) ~~The Company~~ below) has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Preliminary Offering Circular and the Offering Circular and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (~~financial~~ a "MATERIAL ADVERSE EFFECT"). c. All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or ~~otherwise)~~similar rights.All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, ~~earnings~~nonassessable and not subject to any preemptive or similar rights. d. The entities listed on Schedule A hereto are the only "significant subsidiaries", ~~operations~~ direct or ~~business~~ indirect, of the Company, as defined in Rule 1-02 of the Commission's Regulation S-X (the "subsidiaries"). All of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and ~~no proceeding~~ validly issued and are fully paid and non-assessable, and, except as disclosed in the Offering Circular [or on Schedule A hereto], are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien or encumbrance (each, a "LIEN"). e. This Agreement has been ~~instituted in any such jurisdiction revoking~~duly authorized, ~~limiting or curtailing~~executed and delivered by the Company.This Agreement has been duly authorized, ~~or seeking to revoke, limit or curtail, such power~~ executed and ~~authority or qualification~~delivered by the Company. f. The Indenture has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (di) ~~The Company has operated~~ the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors' rights generally and ~~is operating~~ (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, respects to the ~~Company’s knowledge~~requirements of the Trust Indenture Act of 1939, ~~valid~~ as amended (the "TIA" or "TRUST INDENTURE ACT"), and ~~in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws,~~ the rules and regulations of the ~~jurisdictions~~ Commission applicable to an indenture which is qualified thereunder. g. The Series A Notes have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Series A Notes have been issued, executed and authenticated in ~~which it is conducting business~~accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Series A Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors' rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Series A Notes will conform as to legal matters to the description thereof contained in the Offering Circular. h. On the Closing Date, the Series B Notes will have been duly authorized by the Company. When the Series B Notes are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Series B Notes will be entitled to the benefits of the Indenture and will be the valid and binding obligations of the Company, enforceable against the Company ~~is not~~ in ~~material violation~~ accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors' rights generally and (ii) rights of ~~any applicable~~ acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. i. The Registration Rights Agreement has been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered by the Company. When the Registration Rights Agreement has been duly executed and delivered, the Registration Rights Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Registration Rights Agreement will conform as to legal matters to the description thereof in the Offering Circular. j. No action has been taken and no law, ~~order~~statute, ~~rule~~rule or regulation or order has been enacted, ~~regulation, writ, injunction, judgment~~ adopted or ~~decree of~~ issued by any ~~court, government or~~ governmental agency or ~~body~~body which prevents the execution, ~~domestic~~ delivery and performance of any of the Operative Documents, the issuance of the Series A Notes, or ~~foreign~~suspends the sale of the Series A Notes in any jurisdiction referred to in Section 5(e); and no injunction, ~~having~~ restraining order or other order or relief of any nature by a federal or state court or other tribunal of competent jurisdiction ~~over~~ has been issued with respect to the Company or ~~over~~ any of its ~~properties~~subsidiaries which would prevent or suspend the issuance or sale of the Series A Notes in any jurisdiction referred to in Section 5(e). ~~(e) The~~ k. Neither the Company nor any of its subsidiaries is ~~not~~ in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, ~~joint venture~~ mortgage, lease or other agreement or ~~instrument~~ instrument, to which it the Company or any of its subsidiaries is a party or by which it the Company or any of its ~~properties are~~ subsidiaries or their respective property is bound, except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. ~~(f) The Company has full requisite power and authority to enter into this Agreement and perform~~ l. Assuming the ~~transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part~~ accuracy of the ~~Company~~Initial Purchasers' representations, ~~enforceable against~~ warranties and agreements set forth in Section 7 hereof, the ~~Company in accordance with its terms. The~~ execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions ~~herein~~ contemplated hereby and thereby will not ~~result in~~ (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states and except for the filing of the Registration Statements by the Company with the Commission pursuant to the Registration Rights Agreement), (ii) conflict with or constitute a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or ~~constitute~~ a default under~~: (i)~~ , the charter or by-laws of the Company or any of its subsidiaries or any indenture, ~~mortgage, deed of trust~~ loan agreement, ~~bond~~mortgage, ~~debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may be~~ subsidiaries or their respective property is bound~~; (ii) the articles of incorporation or bylaws of the Company: or~~ , (iii) violate or conflict with any applicable ~~law, order,~~ law or any rule, regulation, ~~writ~~judgment, ~~injunction, judgment~~ order or decree of any ~~court, government~~ court or any governmental body or agency ~~or body, domestic or foreign,~~ having jurisdiction over the ~~Company~~ Company, any of its subsidiaries or ~~over its properties.~~ their respective property, (giv) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described result in the ~~Registration Statement~~ imposition or ~~Prospectus, there is neither pending nor,~~ creation of (or the obligation to ~~the best of the Company’s knowledge, threatened~~create or impose) a Lien under, any ~~action, suit, claim~~ agreement or ~~proceeding against~~ instrument to which the Company or any of its ~~officers~~ subsidiaries is a party or by which the Company or any of its ~~properties~~subsidiaries or their respective property is bound, ~~assets~~ or ~~rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which~~ (Av) ~~might~~ result in the termination, suspension or revocation of any ~~material adverse change in the condition~~ Authorization (~~financial or otherwise), earnings, operations or business~~ as defined below) of the Company or ~~might materially~~ any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization except, in each case, for such conflicts, breaches, defaults, violations, Liens, terminations, suspensions, revocations or impairments (other than conflicts with or breaches of the terms and ~~adversely affect its properties, assets or rights~~provisions of, or ~~(B) might prevent consummation~~ a default under, the charter or by-laws of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or ~~the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part~~ any of ~~the Company, enforceable against the Company in accordance with~~ its ~~terms. The Certificates will comply as to form with all applicable laws. (j~~subsidiaries) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP~~ which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has would not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably ~~could~~ be expected to have a ~~material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company~~Material Adverse Effect. ~~(l)~~ m. Except as ~~is otherwise expressly~~ disclosed in the ~~Registration Statement~~ Offering Circular, there are no legal or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code andgovernmental proceedings pending or, to the knowledge of the Company, ~~no event has occurred that would cause~~ threatened to which the Company or any of its subsidiaries is or could be a party or to ~~fail~~ which any of their respective property is or could be subject, which would be reasonably expected to ~~so qualify~~result, singly or in the aggregate, in a Material Adverse Effect. n. Neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (n"ENVIRONMENTAL LAWS") or any provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. o. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. p. The Company ~~has timely filed (~~and its subsidiaries own or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company ownspossess, or ~~possesses adequate rights to use~~can acquire on reasonable terms, all patents, patent rights, licenses, inventions~~, trade secrets, know-how, technology, service marks, trade names~~, copyrights, ~~trademarks~~ know how (including trade secrets and other unpatented and/or unpatentable proprietary ~~rights~~ or ~~information which are necessary for the conduct of its present~~ confidential information, systems or ~~intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets~~procedures), trademarks, service ~~marks,~~ marks and trade names ("intellectual property") currently employed by them in connection with the business now operated by them except where the failure to own or ~~copyrights~~ possess or otherwise be able to acquire such intellectual property would ~~not~~ not, singly or in the aggregate, be reasonably be expected to have a ~~material adverse effect on the condition (financial or otherwise), earnings, operations or business of~~ Material Adverse Effect; and neither the Company ~~and the Company~~ nor any of its subsidiaries has ~~not~~ received any notice ~~of, and has no knowledge of, any~~ of infringement of or conflict with ~~the~~ asserted rights of others with respect to any ~~patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that~~of such intellectual property which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, ~~might~~ would have a ~~material adverse effect~~ Material Adverse Effect. q. The Company and each of its subsidiaries carry insurance (including self-insurance) against such losses and risks and in such amounts as, in their reasonable determination, are adequate for the conduct of the businesses in which they are engaged. r. Except as disclosed or incorporated by reference in the Offering Circular, no relationship, direct or indirect, exists between or among the Company or any of its subsidiaries on the ~~condition (financial~~ one hand, and the directors, officers, stockholders, customers or ~~otherwise), earnings, operations, business or business prospects~~ suppliers of the ~~Company~~Company or any of its subsidiaries on the other hand, which would be required by the Act to be described in the Offering Circular if the Offering Circular were a prospectus included in a registration statement on Form S-1 filed with the Commission. s. Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (peach, an "AUTHORIZATION") ~~The~~ of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has ~~not taken~~ occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and ~~will not take~~such Authorizations contain no restrictions that are burdensome to the Company or any of its subsidiaries; except, in each such case, where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, be reasonably expected to have a Material Adverse Effect. t. None of the Company or any of its subsidiaries or any of their respective officers, directors, partners, employees, agents or affiliates or any other person acting on behalf of the Company or any of its subsidiaries, as the case may be, has, directly or indirectly, given or agreed to give any ~~action~~ money, gift or similar benefit (~~and does not know~~ other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, official or employee of any ~~action by~~ governmental agency (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is or may be in a position to help or hinder the business of the Company or any of its ~~directors, officers, members~~ subsidiaries (or ~~others~~assist the Company or any of its subsidiaries in connection with any actual or proposed transaction) which ~~has constituted~~ (i) would be reasonably expected to subject the Company or ~~is designed to~~any of its subsidiaries or any other individual or entity to any damage or penalty in any civil, criminal or governmental litigation or proceeding (domestic or foreign) which ~~might~~ would have a Material Adverse Effect, (ii) if not given in the past, could reasonably be expected ~~to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company~~ to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains have had a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undMaterial Adverse E

Appears in 1 contract

Sources: Purchase Agreement (Mastec Inc)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the ~~Underwriter~~ Agent as follows, which representations and warranties shall be deemed to be made continuously ~~throughout~~ from and as of the ~~term of~~ date hereof until this ~~Agreement:~~Offering is terminated and all then-outstanding Notes have been paid in full or such earlier date that this Agreement has been terminated. (a) The Registration ~~Statement on Form S-11 (File No. ) with respect to the Certificates~~Statement, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities ~~Act,~~ Act and the Rules and Regulations ~~of the Commission thereunder~~ and has been filed with the Commission under the Securities Act. Copies of the Registration Statement and any amendments thereto, as filed with the Commission, have been delivered by the Company to the Agent. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, including each document included therein by reference, and all amendments thereof and supplements thereto, will comply with or have complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the ~~offering of the Certificates~~ Offering (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the ~~offering~~Offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. None of the representations and warranties in this Section shall apply to any statements in, or omissions from the Agent Disclosure Statements (as defined in Section 5.01(f) below) in the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Minnesota~~Delaware, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and, to the best of the Company' s knowledge, ~~and~~ no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the best of the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its ~~articles~~ certificate of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument~~ Material Agreement to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any ~~indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument~~ Material Agreement to which the Company is a party or by which the Company or its properties may be bound; (ii) the ~~articles~~ certificate of incorporation or bylaws of the Company: , or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or ~~Blue Sky~~ blue sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which if successful would be likely to (A) ~~might~~ result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) ~~might~~ prevent consummation of the transactions contemplated hereby. (i) All outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and the authorized and outstanding capital stock of the Company conforms in all material respects with the statements relating thereto contained in the Registration Statement and the Prospectus. The ~~Certificates~~ Notes to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to the Indenture and this Agreement and, when issued and delivered against payment therefor in accordance with the terms of the Indenture and this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders exists with respect to any of the ~~Certificates~~ Notes to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates Notes will comply as to form with all applicable ~~laws~~provisions of the laws of the State of New York. (j) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~PricewaterhouseCoopers LLP, ~~LLP~~ which has expressed its opinion with respect to certain of the financial statements ~~included~~ filed as a part ~~(whether filed or incorporated by reference)~~ of the Registration Statement, is an independent ~~registered public~~ accounting firm within the meaning of the Securities ~~Act, the Public Company Accounting Oversight Board (PCAOB),~~ Act and the Rules and Regulations. The financial statements of the Company set forth or incorporated by reference in the Registration Statement and Prospectus ~~(or incorporated therein by reference)~~ comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or ~~Prospectus~~Prospectus or as is otherwise incorporated into the Registration Statement pursuant to the Securities Act and the Rules and Regulations, there has not been: (i) any material change in the capital stock or ~~long~~ long-term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company; (iii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, ~~shareholders’~~ stockholders' equity, results of operations or general condition of the Company; (~~iii~~iv) any transaction entered into by the Company that is material to the Company, except transactions entered into by the Company in the ordinary course of business that are consistent with past practices (including without limitation any securitization transaction); (ivv) any material obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of ~~business that, in the aggregate, are not material~~business; or (vvi) any loss or damage (whether or not insured) sustained to the property of the ~~Company~~ Company, which ~~reasonably could be expected to have~~ has a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or ~~Prospectus~~Prospectus or as is otherwise incorporated into the Registration Statement pursuant to the Securities Act and the Rules and Regulations: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company;; and (ii) the ~~agreements~~ Material Agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax ~~returns and~~ returns. The Company has paid all taxes shown ~~thereon~~ on such tax returns as ~~due;~~ due and payable, and there is no tax deficiency that has been or, to the best of the Company’s 's knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company; provided, however, that the Company has not paid, and a deficiency may have been asserted for, taxes which are being contested by the Company in good faith and by proper proceedings and for which appropriate and reasonable reserves have been provided. (on) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (po) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, ~~members~~ employees, or ~~others~~other agents) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, ~~of the price of any security of the Company~~ to facilitate the sale or resale of the ~~Certificates~~Notes. The Company has not distributed and will not distribute prior to the completion of the distribution of the ~~Certificates~~Notes, any offering material in connection with the offering and sale of the ~~Certificates~~ Notes other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities ~~Act~~Act and Rules and Regulations. (p) The Company maintains insurance, which is in full force and effect, with insurers of recognized financial responsibility of the types and in the amounts generally deemed adequate for its business and, to the best of the Company's knowledge, in line with the insurance maintained by similar companies and businesses; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (q) The Company has not at any time during the last five years made any unlawful contribution to any candidate for an office or failed to disclose fully any contribution in violation of law, or made any payment to any federal or state governmental officer or official, domestic or foreign, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the laws of the United States or any jurisdiction thereof. The Company maintains a system of internal accounting controls sufficient to provide reasonable ~~assurance~~ assurances that transactions are executed in accordance with management’s 's general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undaccepte

Appears in 1 contract

Sources: Distribution and Management Agreement (Onyx Acceptance Corp)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees ~~with the~~ with, each Underwriter ~~as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) ~~The Registration Statement on Form S-11~~ changes (~~File No.~~ beyond that contained in the latest Preliminary Prospectus) ~~with respect~~ as the Company has advised you in writing, prior to the ~~Certificates~~Execution Time, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Actwill be included or made therein. (b) ~~As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and~~ Each Preliminary Prospectus, when filed, complied and conformed in all ~~amendments thereof and supplements thereto, will comply or complied~~ material respects with the ~~provisions and~~ applicable requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not ~~contain~~ include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any ~~amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a~~ material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in under which they were made, not misleading. The Commission has not issued any order suspending or preventing the use of any Preliminary Prospectus. On the Effective Date, the Registration Statement did or will, and when the Prospectus is first filed (if required) in accordance with Rule 424(b), and on each Closing Date, the Prospectus (and any supplements thereto) will, comply and conform in all material respects with the applicable requirements of the Securities Act and the Rules; on the Effective Date and each Closing Date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, on the Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule 424(b) and on each Closing Date, the Prospectus (and any supplements thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to statements in or omissions from the information included under the caption "Underwriting" in the Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter, directly or through you, specifically for inclusion in the Registration Statement (which, without limitation of the foregoing, specifically excludes the last paragraph of "Underwriting"). (c) The ~~Company has been duly~~ accountants whose report appears in or is incorporated by reference into the Prospectus are independent accountants as required by the Securities Act and ~~is validly existing as a corporation in good standing under~~ the ~~laws of~~ Rules. The financial statements and schedules (including the ~~State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described~~ related notes) included in the Registration ~~Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties~~ Statement, any Preliminary Prospectus or the ~~conduct~~ Prospectus, present fairly the financial condition, results of ~~its business requires such qualification~~ the operations and ~~in which~~ cash flows of the ~~failure~~ entities purported to be ~~qualified or in good standing would have a material adverse effect on~~ shown thereby at the ~~condition (financial or otherwise), earnings, operations or business of the Company,~~ dates and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the ~~execution~~ periods indicated and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor prepared in accordance with the ~~terms of this Agreement~~Rules and generally accepted accounting principles applied on a consistent basis throughout the periods indicated, ~~will be duly~~ and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any all adjustments thereto necessary for a fair presentation of the ~~Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has~~ results for such periods have been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulationsmade. The financial ~~statements~~ and other information of the Company set forth in the ~~Registration Statement and~~ Prospectus ~~(or incorporated therein by reference) comply in all material respects with~~ under the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undcaptions -3-

Appears in 1 contract

Sources: Underwriting Agreement (Bowlin Outdoor Advertising & Travel Centers Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) ~~The Registration Statement~~ A registration statement on Form ~~S-11~~ S-3 (~~File~~ Registration No. 333-130128) ~~with respect~~ relating to the ~~Certificates, including the Prospectus subject to completion,~~ Shares has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Rules and ~~Regulations~~ Regulations”) of the Securities and Exchange Commission ~~thereunder and has~~ (the “Commission”) thereunder; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act. Copies of such registration statement and any amendment thereto have been delivered by the Company to you. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the The Commission ~~nor any state securities authority~~ has not issued any order preventing or suspending the use of any Preliminary Prospectus or ~~requiring~~ the ~~recirculation~~ Prospectus or suspending the effectiveness of ~~a Preliminary Prospectus~~the Registration Statement, and no proceeding or ~~issued a stop order with respect~~ examination for such purpose has been instituted or threatened by the Commission. (c) (i) Each document, if any, filed or to be filed pursuant to the ~~offering~~ Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the ~~Certificates~~ Commission thereunder, (if ii) each part of the Registration ~~Statement has been declared effective)~~Statement, ~~or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of~~ when such ~~purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become~~ part became effective, ~~the Registration Statement~~ did not contain, and each such part, as amended or supplemented, if applicable, will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading~~. When~~ , (iii) the Registration Statement ~~is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ as of the ~~offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did~~ date hereof does 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, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in ~~order~~ all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 3), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, 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 in under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not 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, (vii) the Prospectus does 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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (viii) the Prospectus does 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 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 do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus in the paragraph relating to the Placement Agents’ fees and reimbursement of expenses appearing under the caption “Plan of Distribution”, which constitutes the only information concerning such Placement Agents furnished to the Company in writing by or on behalf of the Placement Agents expressly for use therein (the “Placement Agents’ Information”). (cd) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the electronic road shows each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus. (e) The Company has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Minnesota~~its incorporation, ~~with full~~ has the corporate power and authority to ~~own, lease~~ own its property and ~~operate its properties and~~ to conduct its business as described in in, the ~~Registration Statement~~ Time of Sale Prospectus and ~~Prospectus. The Company~~ is duly qualified to do transact business and is in good standing in each jurisdiction in which the ~~ownership or lease of its properties or the~~ conduct of its business or its ownership or leasing of property requires such ~~qualification and in which~~ 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 ~~condition~~ Company and its subsidiaries, taken as a whole. (~~financial or otherwise), earnings, operations or business~~ f) Each subsidiary of the ~~Company, and no proceeding~~ Company has been ~~instituted~~ duly incorporated, is validly existing as a corporation in ~~any such~~ good standing under the laws of the jurisdiction ~~revoking~~of its incorporation, ~~limiting or curtailing, or seeking to revoke, limit or curtail, such~~ has the corporate power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its ~~properties~~ property and to conduct its business as described in the ~~Registration Statement~~ Time of Sale 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; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and, except as disclosed in the Time of Sale Prospectus, ~~all of which are, to~~ are owned directly by the Company~~’s knowledge~~, ~~valid~~ free and ~~in full force and effect. The Company is conducting its business in substantial compliance with~~ clear of all ~~applicable laws~~liens, ~~rules and regulations of the jurisdictions in which it is conducting business~~encumbrances, ~~and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment~~ equities or ~~decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties~~claims. (eg) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the ~~Company and is a valid and binding agreement on the part~~ Company. (h) The authorized capital stock of the ~~Company, enforceable against~~ Company conforms as to legal matters to the ~~Company~~ description thereof contained in ~~accordance with its terms. The performance~~ the Time of ~~this Agreement~~ Sale Prospectus and the ~~consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:~~Prospectus. (i) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable. (j) The Shares have been duly authorized and, upon payment and delivery, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any ~~indenture~~preemptive or similar rights. (k) The execution and delivery by the Company of, ~~mortgage~~and the performance by the Company of its obligations under, ~~deed~~ this Agreement will not contravene any provision of ~~trust loan agreement, bond, debenture, note,~~ applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other ~~evidence of indebtedness, any lease, contract, joint venture or other agreement or~~ instrument ~~to which the Company is a party or by which~~ binding upon the Company or any of its ~~properties may be bound; (ii)~~ subsidiaries that is material to the ~~articles of incorporation~~ Company and its subsidiaries, taken as a whole, or ~~bylaws of the Company: or (iii)~~ any ~~applicable law~~judgment, ~~order, rule, regulation, writ, injunction, judgment~~ order or decree of any ~~court~~governmental body, ~~government or governmental~~ agency or ~~body, domestic or foreign,~~ court having jurisdiction over the Company or ~~over its properties. (g) No~~ any subsidiary, and no consent, approval, authorization or order of of, or qualification ~~with~~ with, any ~~court,~~ governmental body or agency ~~or body, domestic or foreign, having jurisdiction over the Company or over its properties~~ is required for the ~~execution and delivery of this Agreement and the consummation~~ performance by the Company of its obligations under this Agreement or the ~~transactions herein contemplated~~offering of Shares as contemplated by the Prospectus, except such as may be required ~~under~~ by the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all~~ laws of ~~which requirements have been satisfied~~the various states of the United States of America or by the securities laws of other applicable jurisdictions in connection with the offer and sale of the Shares. (hl) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there There has not ~~been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii)~~ occurred any material adverse change, or any development involving a prospective material adverse change, in ~~or affecting~~ the ~~condition (~~condition, financial or otherwise), or in the earnings~~, operations~~, business or ~~business prospects, management, financial position, shareholders’ equity, results of~~ operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company ~~which reasonably could be expected to have~~ and its subsidiaries, taken as a ~~material adverse effect on~~ whole, from that set forth in the ~~condition (financial or otherwise), earnings, operations or business~~ Time of ~~the Company~~Sale Prospectus. (lm) ~~Except as~~ There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is ~~otherwise expressly disclosed in~~ a party or to which any of the ~~Registration Statement~~ properties of the Company or ~~Prospectus:~~ any of its subsidiaries is subject (i) ~~the Company has good and marketable title to all of the property, real and personal, and assets~~ other than proceedings accurately described in all material respects in the ~~Registration Statement or~~ Time of Sale Prospectus ~~as being owned by it, free~~ and ~~clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as~~ proceedings that would not have a material adverse effect on the ~~condition (financial~~ Company and its subsidiaries, taken as a whole, or ~~otherwise), earnings, operations~~ on the power or ~~business~~ ability of the ~~Company;~~ Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) ~~the agreements~~ that are required to ~~which the Company is a party~~ be described in the Registration Statement or the Prospectus and ~~Prospectus~~ are ~~valid agreements~~not so described; and there are no statutes, ~~enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy~~regulations, ~~insolvency, reorganization, moratorium~~ contracts or other ~~similar laws relating~~ documents that are required to ~~or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties~~ be described in the Registration Statement ~~and~~ or the Prospectus or to be filed as ~~leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating~~ exhibits to ~~or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in~~ the Registration Statement ~~and Prospectus, the Company owns~~ that are not described or ~~leases all such properties~~ filed as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualifyrequired. (n) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. (o) The Company ~~has timely filed (or has timely requested an extension of time to file) all necessary federal~~ is not, and ~~state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or,~~ after giving effect to the ~~best~~ offering and sale of the ~~Company’s knowledge~~Shares and the application of the proceeds thereof as described in the Prospectus will not be, ~~could be asserted against~~ required to register as an “investment company” as such term is defined in the Investment Company ~~that might~~ Act of 1940, as amended. (p) The Company and its subsidiaries (i) are in compliance with any and all applicable Icelandic and United States 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) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) 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 ~~condition (financial or otherwise)~~Company and its subsidiaries, ~~earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company~~taken as a whole. (oq) ~~The Company owns~~There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or ~~possesses adequate rights~~ operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to ~~use~~third parties) which would, ~~all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights~~ singly or ~~information which are necessary for the conduct of its present or intended business as described~~ in the ~~Registration Statement or Prospectus. The expiration of any patents~~aggregate, ~~patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not~~ have a material adverse effect on the ~~condition~~ Company and its subsidiaries, taken as a whole. (~~financial or otherwise), earnings, operations or~~ r) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in or contemplated by the Time of Sale Prospectus. (s) The Company and its subsidiaries own or possess, 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 currently employed by them in connection with the business now operated by them, and, except as disclosed in the Time of Sale Prospectus, neither the Company nor any of its subsidiaries has ~~not~~ received any notice ~~of, and has no knowledge of, any~~ of infringement of or conflict with ~~the~~ asserted rights of others with respect to any ~~patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that~~of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, ~~might have~~ would result in any 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. All 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 owned or possessed and currently employed by (i) the subsidiaries of Islensk erfdagreining ehf. (including Encode ehf.), and (ii) MediChem Life Sciences, Inc. (and its subsidiaries, (including Emerald BioStructures, Inc.) are not material to the Company and its subsidiaries, taken as a whole. (t) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Company and its subsidiaries, taken as a whole, except as described in or contemplated by the Time of Sale Prospectus. (u) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a material adverse ~~effect on~~ change in the ~~condition (~~condition, financial or otherwise), or in the earnings~~, operations~~, business or ~~business prospects~~ operations of the ~~Company~~Company and its subsidiaries, taken as a whole, except as described in or contemplated by the Time of Sale Prospectus. (pv) The Company ~~has not taken~~ and ~~will not take, directly or indirectly, any action (and does not know~~ each of ~~any action by~~ its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific ~~authorizations and~~ authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting ~~principles. To~~ principles and to maintain ~~accountability for assets,~~ asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization, ; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und

Appears in 1 contract

Sources: Placement Agency Agreement (Decode Genetics Inc)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees ~~with~~ with, the Underwriter ~~as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The Registration Statement ~~on Form S-11~~ has become effective (~~File No.~~ other than any Rule 462(b) ~~with respect~~ Registration Statement to ~~the Certificates, including the Prospectus subject to completion, has been prepared~~ be filed by the Company ~~in conformity with~~ after the ~~requirements~~ effectiveness of this Agreement); any Rule 462(b) Registration Statement filed after the effectiveness of this Agreement will become effective no later than 10:00 P.M., New York City time, on the date of this Agreement. No stop order suspending the effectiveness of the ~~Securities Act~~Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the ~~Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~Commission. (bi) ~~As of~~ Each document filed or to be filed pursuant to the ~~Effective Date,~~ Exchange Act and at incorporated by reference in the Prospectus complied or will comply when so filed in all ~~times subsequent thereto until~~ material respects with the ~~termination of the Offering,~~ Exchange Act; (ii) the Registration Statement ~~and Prospectus~~(other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement), ~~and all amendments thereof and supplements thereto~~when it became effective, did not contain and, as amended, if applicable, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading~~. When~~ , (iii) the Registration Statement ~~is or was declared effective~~ (other than any Rule 462(b) Registration Statement to be filed by the ~~Commission~~ Company after the effectiveness of this Agreement) and ~~at all times subsequent thereto until the termination of the offering,~~ the Prospectus (comply and, as amended or supplemented, if applicable, will comply in all material respects with the Act, (iv) if the Company ~~shall have filed with~~ is required to file a Rule 462(b) Registration Statement after the ~~Commission~~ effectiveness of this Agreement, such Rule 462(b) Registration Statement and any ~~amendment thereof or supplement~~ amendments thereto, when they become effective (A) will ~~not or did~~ 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 (B) will comply in ~~order~~ all material respects with the Act and (v) the Prospectus does 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 necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein. (c) ~~The~~ Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in any preliminary prospectus based upon information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein. (d) Each of the Company and its subsidiaries has been duly ~~incorporated and~~ formed, is validly existing ~~as a corporation~~ and in good standing under the laws of its jurisdiction of formation and has the ~~State of Minnesota, with full~~ power and authority to carry on its business as described in the Prospectus and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign organization authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, ~~and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.~~ taken as a whole (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesa "Material Adverse Effect"). (e) ~~The~~ All outstanding shares of capital stock of the Company is have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights, and all of such shares are owned beneficially and of record by Eastern Enterprises, an unincorporated voluntary association organized in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are boundMassachusetts. (f) The ~~Company has full requisite power~~ entities listed on Schedule A hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock or other ownership interests of each of the Company's subsidiaries have been duly authorized and ~~authority to enter into this Agreement~~ validly issued and ~~perform~~ are fully paid and non-assessable, and are owned by the ~~transactions contemplated hereby.~~ Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien"). (g) This Agreement has been duly authorized, executed and delivered by the Company. (h) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), has been duly authorized, executed and delivered by the Company and is a valid and binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its ~~terms. The performance~~ terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of ~~this Agreement~~ acceleration and the ~~consummation~~ availability of ~~the transactions herein contemplated will not result in a breach or violation~~ equitable remedies may be limited by equitable principles of ~~any of the terms and provisions of, or constitute a default under:~~general applicability. (i) The Indenture constitutes a first "preferred mortgage" on each of the Vessels under the Ship Mortgage Act, as amended, and the Bonds are validly secured by the Indenture in accordance with the terms thereof. (j) The Bonds have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Bonds have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter in accordance with the terms of this Agreement, the Bonds will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the qualifications set forth in (i) and (ii) of Section 6(h) of this Agreement. On the Closing Date, the Bonds will conform as to legal matters to the description thereof contained in the Prospectus. (k) Neither the Company nor any of its subsidiaries is in violation of its respective charter documents or by-laws or in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, ~~mortgage, deed of trust~~ loan agreement, ~~bond~~mortgage, ~~debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, and to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties ~~may be~~ is bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (gl) No The execution, delivery and performance of this Agreement and the other Operative Documents, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, (except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws~~laws of the various states), ~~all~~ (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which ~~requirements have been satisfied~~the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties are bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its subsidiaries or their respective properties, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under any agreement or instrument (other than the Indenture) to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties are bound, or (v) result in the termination, suspension or revocation of any Authorization (as defined below) of the Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization. (hm) ~~Except as~~ There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is ~~otherwise expressly~~ or could be a party or to which any of their respective properties are or could be subject that are required to be described in the Registration Statement or ~~Prospectus~~the Prospectus and are not so described; nor are there any statutes, ~~there is neither pending nor~~regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the ~~best~~ Registration Statement that are not so described or filed as required. (n) Neither the Company nor any of its subsidiaries has violated any provision of the ~~Company’s knowledge~~Employee Retirement Income Security Act of 1974, ~~threatened~~as amended ("ERISA"), or any provision of the Foreign Corrupt Practices Act, as amended ("Corrupt Practices Act"), or the rules and regulations promulgated under such statutes, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (o) Neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law, regulation or code relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), except for such violations that, singly or in the aggregate, would not have a Material Adverse Effect. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any ~~action~~capital or operating expenditures required for clean-up, ~~suit~~closure of properties or compliance with Environmental Laws or any Authorization (as defined below), ~~claim~~ any related constraints on operating activities or any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (p) There is no (i) unfair labor practice complaint, grievance or arbitration proceeding pending or threatened against the Company or any of its ~~officers~~ subsidiaries before the National Labor Relations Board or any state or local labor relations board, or (ii) strike, labor dispute, slowdown or stoppage pending or threatened against the Company or any of its ~~properties~~subsidiaries, ~~assets~~ except in the case of both clauses (i) and (ii) for such actions which, singly or ~~rights before~~ in the aggregate, would not have a Material Adverse Effect. (q) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any ~~court~~applicable Environmental Laws, ~~government~~ as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or ~~governmental agency~~ to make any such filing or ~~body~~notice would not, ~~domestic~~ singly or ~~foreign~~in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction ~~over~~ with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are burdensome to the Company or ~~over~~ any of its ~~officers~~ subsidiaries; except where such failure to be valid and in full force and effect or ~~properties~~ to be in compliance, the occurrence of any such event or ~~otherwise which (A) might result in~~ the presence of any ~~material adverse change~~ such restriction would not, singly or in the ~~condition (financial or otherwise)~~aggregate, ~~earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby~~have a Material Adverse Effect. (ir) The ~~Certificates~~ Company has good and marketable title to ~~be sold hereunder~~ each of the Vessels, and all other real property and personal property described in the Prospectus as being owned by ~~the Company have been duly authorized for issuance and sale pursuant to this Agreement and~~it (if any), ~~when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold~~ free and clear of any ~~pledge~~Liens, ~~lien, security interest, encumbrance, claim~~ other than the Liens established pursuant to or ~~equitable interest;~~ permitted by the Indenture. No party other than the Company and ~~no preemptive~~ its subsidiaries has any right, ~~co-sale right, registration right, right of~~ option or first refusal to purchase or ~~other similar right exists with respect to~~ lease any of the ~~Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by~~ Vessels. (s) Each of the Company and ~~the Trustee and is a valid and binding agreement~~ its subsidiaries, as applicable, carries insurance on the ~~part of the Company, enforceable against~~ Vessels in such amounts and covering such risks as is customary for companies engaged in similar businesses. Neither the Company nor any of its subsidiaries has received notice from any insurer that capital improvements or expenditures are necessary or required to be made in ~~accordance with its terms. The Certificates will comply as~~ order to ~~form with all applicable laws~~continue such insurance. (jt) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇~~▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ LLP ~~which has expressed its opinion~~ is an independent public accountant with respect to ~~certain of~~ the Company and its subsidiaries as required by the Act. (u) The consolidated, historical financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects~~ supplement thereto), together with related schedules and notes, present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated therein at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; ~~and~~ the supporting ~~schedules~~ schedules, if any, included in the Registration Statement present fairly in accordance with generally accepted accounting principles the information required to be stated therein~~. The selected~~ ; and ~~summary~~ the other financial ~~included~~ and statistical information and data set forth in the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference~~supplement thereto) ~~present fairly the information shown therein~~ are, in all material respects, accurately presented and ~~have been compiled~~ prepared on a basis consistent with ~~the audited~~ such financial statements ~~presented therein. No other financial statements~~ and the books and records of the Company. (v) The Company is not and, after giving effect to the offering and sale of the Bonds and the application of the net proceeds thereof as described in the Prospectus, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. (w) There are no contracts, agreements or ~~schedules are required by~~ understandings between the ~~Securities~~ Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the ~~Rules and Regulations~~ Company to ~~be included in~~ include such securities with the Bonds registered pursuant to the Registration Statement. (kx) ~~Subsequent~~ No "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company's retention of any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering (A) the downgrading, suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (B) any change in the outlook for any rating of the Company or any securities of the Company. (y) Since the respective dates as of which information is given in the ~~Registration Statement and~~ Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the ~~Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted.~~ Prospectus (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration exclusive of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undamendments

Appears in 1 contract

Sources: Underwriting Agreement (Eastern Enterprises)

Representations, Warranties and Agreements of the Company. (a) The Company represents and warrants to and agrees with ~~the~~ each Underwriter that: (i) Each Prepricing Prospectus included as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements part of the ~~Securities~~ registration statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, ~~and the Rules and Regulations of the Commission thereunder and has been~~ complied when so filed ~~with the Commission under the Securities Act. (b) As of the Effective Date, and at~~ in all ~~times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied~~ material respects with the provisions ~~and requirements~~ of the ~~Securities Act and the Rules and Regulations~~Act. ~~Neither the~~ The Commission ~~nor any state securities authority~~ has not issued any order preventing or suspending the use of any ~~Preliminary Prospectus or requiring~~ Prepricing Prospectus. (ii) The Company and the ~~recirculation of a Preliminary Prospectus, or issued a stop order with respect to~~ transactions contemplated by this Agreement meet the ~~offering of~~ requirements for using Form S-3 under the ~~Certificates (if the~~ Act. The Registration Statement ~~has been declared effective),~~ in the form in which it became or ~~instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become~~ becomes effective and also in such form as it may be when any post-effective amendment thereto shall become ~~effective,~~ effective complied or will comply in all material respects with the ~~Registration Statement~~ provisions of the Act and did not or will not at any such times 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, and the Prospectus as supplemented or amended when filed with the Commission under Rule 424(b) under the Act complied with or will comply in all material respects with the provisions of the Act and did not or will not at any such time 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, in light of the circumstances in under which they were made, not misleading~~. When~~ , except that this representation and warranty does not apply to statements in or omissions from the Registration Statement is or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein. (iii) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such Incorporated Document was ~~declared effective by~~ filed, when such amendment was filed), conformed in all material respects with the ~~Commission and at all times subsequent thereto until the termination~~ requirements of the ~~offering~~Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the ~~Prospectus~~ requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (~~as amended or supplemented~~or, if ~~the Company shall have filed~~ an amendment with ~~the Commission~~ respect to any such Incorporated Document was filed, when such amendment ~~thereof or supplement thereto) will not or did not contain any~~ was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading. (civ) All the outstanding shares of the Company's Common Stock, par value $2.50 per share (the "Common Shares"), have been duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights; the Shares have been duly authorized and, when issued and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; and the capital stock of the Company conforms, in all material respects, to the description thereof in the Registration Statement and the Prospectus. (v) The Company ~~has been~~ is a corporation duly ~~incorporated~~ organized and is validly existing ~~as a corporation~~ in good standing under the laws of the State of ~~Minnesota,~~ California with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and the Prospectus, ~~all~~ and is not required to be qualified as a foreign corporation for the transaction of business under the laws of any jurisdictions in which ~~are~~the consequences of a failure to qualify, individually or in the aggregate, would have a material adverse effect on the business of the Company. (vi) There are no legal or governmental proceedings pending or, to the ~~Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations~~ knowledge of the ~~jurisdictions in~~ Company, threatened, against the Company, or to which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or ~~over~~ any of its ~~properties~~properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement or any Incorporated Document that are not described or filed as required by the Act or the Exchange Act, as applicable. (evii) The Company is not in violation of its articles of incorporation or ~~bylaws~~ by-laws and has complied, in all respects material to the Company, with any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any decree applicable to the Company of any court or governmental agency or body having jurisdiction over the Company, and is not in default in any material respect in the performance ~~or observance~~ of any obligation, ~~agreement, covenant~~ agreement or condition contained in any material bond, debenture, note or other evidence of indebtedness or in any ~~contract~~material agreement, ~~lease~~lease or other instrument to which the Company is a party or by which its properties are bound. (viii) Neither the execution, delivery or performance of this Agreement by the Company nor the issuance and sale of the Shares contemplated hereby (1) requires any consent, approval, authorization or other order of or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official on the part of the Company (except (x) authorizations and orders of the Public Utilities Commission of the State of California, which have been obtained, are in full force and effect and are sufficient to authorize the transactions contemplated hereby and (y) such as may be required for the registration of the Shares under the Act and compliance with the Exchange Act and the securities or Blue Sky laws of various jurisdictions) or (2) conflicts or will conflict with the articles of incorporation or bylaws of the Company or (3) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, ~~mortgage, loan agreement, joint venture~~ lease or other instrument to which the Company is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of its ~~properties are bound~~property or assets is subject. (fix) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act. (x) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto for use in connection with the offering of the Shares), present fairly the financial position, results of operations and changes in financial position of the Company ~~has full requisite power~~ on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and ~~authority~~ related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto for use in connection with the offering of the Shares) are accurately presented and to ~~enter into~~ the extent derived therefrom prepared on a basis consistent with such financial statements and the books and records of the Company. (xi) The execution and delivery of, and the performance by the Company of its obligations under, this Agreement have been duly and ~~perform~~ validly authorized by the ~~transactions contemplated hereby. This~~ Company, and this Agreement has been duly ~~authorized,~~ executed and delivered by the Company and ~~is a~~ constitutes the valid and legally binding agreement ~~on the part~~ of the Company, enforceable against the Company in accordance with its terms~~. The performance of this Agreement~~ , except as rights to indemnity and ~~the consummation of the transactions herein contemplated will not result in a breach~~ contribution hereunder may be limited by federal or ~~violation of any of the terms~~ state securities laws, and ~~provisions of~~except as limited by bankruptcy, ~~or constitute a default under: (i) any indenture~~insolvency, ~~mortgage~~reorganization, ~~deed of trust loan agreement, bond, debenture, note, agreement~~ moratorium or other ~~evidence of indebtedness, any lease, contract, joint venture~~ laws or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesequitable principles. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (hxii) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth disclosed in the Registration Statement and the Prospectus (or ~~incorporated therein by reference) comply~~ any amendment or supplement thereto for use in ~~all material respects~~ connection with the ~~requirements~~ offering of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent Shares), subsequent to the respective dates as of which such information is given in the ~~Registration Statement and Prospectus~~Prospectus (or any amendment or supplement thereto for use in connection with the offering of the Shares), ~~except as is otherwise disclosed~~ the Company has not incurred any liability or obligation, direct or contingent, or entered into any transaction, in each case other than in the ~~Registration Statement or Prospectus~~ordinary course of business, that is material to the Company, and there has not ~~been: (i)~~ been any change (other than pursuant to the Company's Dividend Reinvestment and Common Share Purchase Plan and Investment Incentive Program) in the capital ~~stock or long term debt (including any capitalized lease obligation)~~ stock, or material increase in the short-term debt or long-term debt, of the Company~~; (ii)~~ , or any material adverse change, or any development ~~involving~~ involving, or which would reasonably be expected to involve, a prospective material adverse change, in ~~or affecting~~ the condition (financial or ~~otherwise~~other), ~~earnings~~business, ~~operations, business~~ net worth or ~~business prospects, management, financial position, shareholders’ equity,~~ results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (lxiii) ~~Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the~~ The Company has good and marketable title to all ~~of the property,~~ property (real and personal~~, and assets~~ ) described in the ~~Registration Statement or~~ Prospectus as being owned by it, free and clear of ~~any and~~ all ~~pledges,~~ liens, ~~security interests, encumbrances, equities, charges or~~ claims, security interests or other ~~than~~ encumbrances except such as are described in the Registration Statement and the Prospectus or in a document filed as an exhibit to the Registration Statement and except for liens, claims, security interests or other encumbrances that would ~~not~~ not, individually or in the aggregate, have a material adverse effect on the ~~condition (financial or otherwise), earnings, operations or~~ business of the Company~~; (ii)~~ ; and all the ~~agreements to which~~ property described in the Prospectus as being held under lease by the Company is ~~a party described in the Registration Statement and Prospectus are valid agreements~~held by it under valid, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid subsisting and enforceable leases ~~for all properties described~~ except in any respect that would not, individually or in the ~~Registration Statement and Prospectus as leased by it~~aggregate, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the ~~condition (financial or otherwise), earnings, operations,~~ business ~~or properties of the Company, and all tax liabilities are adequately provided for in the books~~ of the Company. (oxiv) The Company ~~owns~~has such permits, licenses, franchises and authorizations of governmental or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which regulatory authorities ("permits") as are necessary ~~for~~ to own its properties and to conduct its business, in all material respects, in the ~~conduct of its present or intended business as~~ manner described in the ~~Registration Statement~~ Prospectus, subject to such qualifications as may be set forth in the Prospectus; the Company has fulfilled and performed all its obligations with respect to such permits where the failure to fulfill or ~~Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights~~ perform would ~~not~~ have a material adverse effect on the ~~condition (financial or otherwise), earnings, operations or~~ business of the Company and ~~the Company has not received any notice of, and~~ has no knowledge ofof the occurrence of any event which, pursuant to the terms thereof, allows, or after notice or lapse of time would allow, the early revocation or termination thereof or results in any ~~infringement~~ other material impairment of ~~or conflict with~~ the ~~asserted~~ rights of ~~others with respect~~ the holder of any such permit, subject in each case to ~~any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or~~ such qualification as may be set forth in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the CompanyProspectus. (pxv) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price No holder of any security of the Company has any right to ~~facilitate the sale~~ require registration of shares of Common Shares or ~~resale~~ any other security of the ~~Certificates. The~~ Company ~~has not distributed and will not distribute prior to the completion~~ because of the ~~distribution~~ filing of the ~~Certificates, any offering material in connection with the offering and sale~~ registration statement or consummation of the ~~Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted~~ transactions contemplated by ~~the Securities Act~~this Agreement. (qxvi) The Company ~~maintains~~ is not an "investment company" or a ~~system~~ company "controlled" by an "investment company" within the meaning of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded the Investment Company Act of 1940, as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differencesamended. (ra) ~~Except as set forth in the Registration Statement and Prospectus: (i)~~ Any certificate signed by any officer of the Company and ~~each entity that owns~~ delivered to you or ~~possesses real property in which~~ to counsel for the ~~Company holds~~ Underwriters shall be deemed a ~~security interest is in material compliance with all material rules, laws~~ representation and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied warranty by the Company ~~or in which the Company holds a security interest has been designated~~ to each Underwriter as ~~a Superfund site pursuant~~ to the ~~Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss~~matters covered thereby. ~~9601, et seq~~5.~~), or otherwise designated as a contaminated site und~~

Appears in 1 contract

Sources: Underwriting Agreement (Southern California Water Co)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to the Underwriter as of the date hereof, the Applicable Time and the Delivery Date (as defined below), and agrees with the ~~Underwriter~~ Underwriter, as follows~~, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~: (a) ~~The~~ Each of the Registration Statement ~~on Form S-11~~ and any post-effective amendment thereto has become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of the Base Prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (~~File No~~if any) from the Commission for additional information. ) Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to the ~~Certificates, including the Prospectus subject~~ Underwriter pursuant to ~~completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and~~ Rule 430B(f)(2) under the Rules and ~~Regulations of the Commission thereunder and has been filed~~ Regulations, complied in all material respects with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. ~~Neither~~ The Base Prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the Rules and Regulations. The Base Prospectus delivered by the Company to the Underwriter for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission ~~nor any state securities authority has issued any order preventing~~ pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. The documents incorporated or ~~suspending~~ deemed incorporated by reference in the ~~use of any Preliminary~~ Registration Statement, the Base Prospectus ~~or requiring~~ and the ~~recirculation of a Preliminary~~ Prospectus, when they became effective or ~~issued a stop order~~ at the time they were or hereafter are filed with ~~respect to~~ the ~~offering~~ Commission, complied and will comply in all material respects with the requirements of the ~~Certificates~~ Exchange Act.: (if b) Neither the Registration Statement ~~has been declared effective~~nor any amendment thereto, at its effective time or on the Delivery Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, neither (A) the Pricing Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the Pricing Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will 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. Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) or ~~instituted or~~on the Delivery Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the ~~Company’s knowledge~~statements therein, ~~threatened~~ in the ~~institution of~~light of the circumstances under which they were made, ~~proceedings for any of such purposes~~not misleading. ~~When~~ The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, at the time the Registration Statement ~~shall become~~ became effective ~~and~~ or when ~~any post-effective amendment thereto shall become effective~~such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the ~~Registration Statement~~ Pricing Disclosure Package or the Prospectus, as the case may be, did not and will not ~~or did not contain any~~ include 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, in light of the circumstances in which they were made,~~ therein not misleading. ~~When~~ The representations or warranties of this subsection shall not apply to information contained in or omitted from the Registration Statement is (or ~~was declared effective by~~ any amendment thereto), the ~~Commission and at all times subsequent thereto until the termination of the offering,~~ Pricing Disclosure Package or the Prospectus (~~as amended~~ or ~~supplemented, if the Company shall have filed with the Commission~~ any amendment ~~thereof~~ or supplement thereto) ~~will not or did not contain any untrue statement of a material fact or omit~~ in reliance upon and in conformity with written information furnished to ~~state a material fact required to be stated therein or necessary in order to make~~ the ~~statements~~ Company by the Underwriter specifically for inclusion therein, which information is specified in ~~light of the circumstances in which they were made, not misleading.~~Section 10(d) (c) The Company ~~has been duly incorporated and is validly existing as a corporation in good standing under~~ was at the ~~laws~~ time of the ~~State~~ initial filing of ~~Minnesota~~the Registration Statement with the Commission, ~~with full power~~ and ~~authority~~ at all times thereafter has been, eligible to ~~own~~use Form S-3 to register the resale of the Stock, ~~lease~~ and ~~operate its properties and conduct its business as described in~~ was not at the time of initial filing of the Registration Statement and ~~Prospectus~~at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) for the Stock and is not on the date hereof and will not be on the Delivery Date an “ineligible issuer” (as defined in Rule 405). The Company’s Public Float is (i) at least $150 million; or (ii) $100 million and its Common Stock has an annual trading volume of at least three million shares. The Company ~~is duly qualified~~ has (A) filed all the materials required to ~~do business~~ be filed pursuant to the Exchange Act for a period of at least 36 calendar months; and is (B) filed in ~~good standing~~ a timely manner all reports required to be filed during the past 12 calendar months and, in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtednesscase, any ~~lease, contract, joint venture or other agreement or instrument to which~~ portion of a month immediately preceding such dates. As used herein the ~~Company is a party or by which~~ term (a) “Public Float” means the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best aggregate market value of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially voting and ~~adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder~~ non-voting common equity held by ~~the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor~~ non-affiliates calculated in accordance with ~~the terms~~ Instruction 2 to General Instruction B of ~~this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest~~Form S-3; and ~~no preemptive right, co~~(b) “annual trading volume” means the number of shares of Common Stock traded on the NASDAQ Global Select Market during a recurring 12-~~sale right, registration right, right of first refusal or other similar right exists with respect to any~~ month period culminating within 60 days of the ~~Certificates to be sold hereunder by the Company or the issuance and sale thereof~~date hereof. The ~~Indenture~~ Company’s Common Stock has ~~been duly authorized, executed and delivered by~~ an ADTV value of at least $1.0 million. As used herein the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within term “ADTV” shall have the meaning ascribed to it in Rule 100 of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undRegulation M.

Appears in 1 contract

Sources: Underwriting Agreement (Ntelos Holdings Corp)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File ~~No.~~ N 333-______) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇~~Boulay, Heutmaker, ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~and Company, ~~LLP~~ P.L.L.P. which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ ' equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undspecific

Appears in 1 contract

Sources: Distribution Agreement (American Church Mortgage Co)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the ~~Underwriter~~ Agent as follows, which representations and warranties shall be deemed to be made continuously ~~throughout~~ from and as of the ~~term~~ date hereof until this Offering is terminated and all then outstanding Notes have been paid in full or such earlier date that this Agreement has been terminated, except for those representations and warranties that address matters only as of ~~this Agreement:~~a particular date, which representations and warranties shall be deemed to be made as of such date. (a) The ~~Registration Statement on~~ Company satisfies all of the requirements for the use of Form ~~S-11 (File No. )~~ S-2 with respect to the ~~Certificates, including the Prospectus subject to completion, has been prepared~~ offer and sale of securities as contemplated by the ~~Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the~~ Offering. The Commission ~~thereunder and~~ has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has not issued any order preventing or suspending the use of ~~any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if~~ the Registration Statement or Prospectus and no proceeding for that purpose has been ~~declared effective), or~~ instituted or, to the Company’s 's knowledge, threatened by the ~~institution of~~Commission or the securities authority of any state or other jurisdiction. (b) The Registration Statement, ~~proceedings for any of such purposes. When~~ in the ~~Registration Statement shall become~~ form in which it became effective and also in such form as it may be when any post-effective amendment thereto shall become effective, and the ~~Registration Statement~~ Prospectus, and any supplement or amendment thereto when filed with the Commission under Rule 424 under the Securities Act, complied or will comply with the provisions of the Securities Act and the Trust Indenture Act, and did not or will not ~~or did not~~ at any such times 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 made therein, in light of the circumstances in which they were made, not misleading~~. When~~ , except that this representation and warranty does not apply to: (i) any statements in, or omissions from the Agent Disclosure Statements (as defined in Section 5.01(f) below) in the Registration Statement is or ~~was declared effective by~~ the ~~Commission and at all times subsequent thereto until the termination of the offering~~Prospectus, ~~the Prospectus (as amended~~ or ~~supplemented, if the Company shall have filed with the Commission~~ any amendment thereof or supplement thereto; or (ii) statements in or omissions from the Registration Statement (or any amendment thereto) related to or resulting from the specific terms of the Offering, which terms are included in the Prospectus. (c) The Incorporated Documents previously filed, at the time they were filed, complied in all material respects with the requirements of the Exchange Act, and all subsequently filed Incorporated Documents will, at the time they are filed, comply in all material respects with the requirements of the Exchange Act. No such previously filed Incorporated Document, when filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when filed, will ~~not or did not~~ contain ~~any~~ an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein not misleading, except that this representation and warranty does not apply to the extent that any misstatement or omission in ~~light~~ any Incorporated Document is superseded by a subsequent Incorporated Document, but in such case only with respect to the period from and after the filing of the ~~circumstances in which they were made, not misleading~~subsequent Incorporated Document. (cd) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Minnesota~~California, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration ~~Statement~~ Statement, the Prospectus and ~~Prospectus~~the Incorporated Documents. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and, to the best of the Company' s knowledge, ~~and~~ no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (de) Each subsidiary of the Company has been duly incorporated or organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Prospectus and the Incorporated Documents. Each such subsidiary is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and, to the best of the Company' s knowledge, no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (f) The Company and each subsidiary has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration ~~Statement~~ Statement, the Prospectus and ~~Prospectus~~the Incorporated Documents, all of which are, to the best of the Company’s 's knowledge, valid and in full force and effect. The Company and each subsidiary is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company and each subsidiary is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any such subsidiary or their respective over its properties. (eg) The Company and each subsidiary is not in violation of its certificate or articles of incorporation or bylaws (or similar governing documents) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument~~ Material Agreement to which it is a party or by which it or its properties are bound. (fh) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its ~~terms~~terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any ~~indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument~~ Material Agreement to which the Company or any subsidiary is a party or by which the Company or ~~its~~ any subsidiary or their respective properties may be bound; (ii) the articles of incorporation or bylaws of the Company: , or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or ~~over its~~ any subsidiary or their respective properties. (gi) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, the Trust Indenture Act, or under state or other securities or ~~Blue Sky~~ blue sky laws, all of which requirements have been satisfied. (hj) Except as is otherwise expressly described in or incorporated by reference into the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any ~~of its officers~~ subsidiary or any of ~~its~~ their respective officers or properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction there over ~~the Company or over its officers or properties or otherwise which~~ which, if successful, would be likely to (A) ~~might~~ result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) ~~might~~ prevent consummation of the transactions contemplated hereby. (ik) The ~~Certificates~~ authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus and the shares of issued and outstanding Common Stock set forth thereunder have been duly authorized, validly issued, are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and the authorized and outstanding capital stock of the Company conforms in all material respects with the statements relating thereto contained or incorporated by reference in the Registration Statement and the Prospectus. The Notes to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to the Indenture and this Agreement and, when issued and delivered against payment therefor in accordance with the terms of the Indenture and this Agreement, will be duly and validly issued and fully paid and non-assessable and will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders exists with respect to any of the ~~Certificates~~ Notes to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (jl) ~~▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇~~KPMG LLP, ~~LLP~~ which has expressed its opinion with respect to certain of the financial statements ~~included as a part (whether~~ filed or incorporated by ~~reference)~~ reference as part of the Registration Statement, is an independent ~~registered public~~ accounting firm within the meaning of the Securities Act~~, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations~~. The financial statements of the Company set forth or incorporated by reference in the Registration Statement and Prospectus ~~(or incorporated therein by reference)~~ comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (km) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or ~~Prospectus~~Prospectus or as is otherwise incorporated into the Registration Statement pursuant to the Securities Act, there has not ~~been~~been (i) any material adverse change in the condition, financial or otherwise, earnings, affairs or business prospects of the Company or any subsidiary, or (ii) any material transactions entered into by the Company, or any of its subsidiaries, other than those in the ordinary course of business, including, without limitation: (i) any material change in the capital stock or ~~long~~ long-term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the capital stock of the Company; (iii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, ~~shareholders’~~ stockholders' equity, results of operations or general condition of the Company; (~~iii~~iv) any transaction entered into by the Company that is material to the Company, except transactions entered into by the Company in the ordinary course of business that are consistent with past practices (including without limitation any securitization transaction); (ivv) any material obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of ~~business that, in the aggregate, are not material~~business; or (vvi) any loss or damage (whether or not insured) sustained to the property of the ~~Company~~ Company, which ~~reasonably could be expected to have~~ has a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (ln) Except as is otherwise expressly disclosed in the Registration Statement or ~~Prospectus~~Prospectus or as is otherwise incorporated into the Registration Statement pursuant to the Securities Act: (i) the Company ~~has~~ and its subsidiaries have good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by itthem, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the ~~agreements~~ Material Agreements to which the Company or any subsidiary is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company or such subsidiary except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ ' rights generally or by judicial limitations on the right of specific performance; and (iii) ~~the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it,~~ except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company and each of its subsidiaries owns or leases all such properties as are necessary to ~~its~~ their operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (no) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax ~~returns and~~ returns. The Company has paid all taxes shown ~~thereon~~ on such tax returns as ~~due;~~ due and payable, and there is no tax deficiency that has been or, to the best of the Company’s 's knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company; provided, however, that the Company has not paid, and a deficiency may have been asserted for, taxes which are being contested by the Company in good faith and by proper proceedings and for which appropriate and reasonable reserves have been provided. (op) The Company ~~owns~~and its subsidiaries own, or ~~possesses~~ possess adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and ~~proprietary~~ other intellectual property rights or information which are necessary for the conduct of ~~its~~ their present or intended business as described in the Registration Statement or ~~Prospectus~~Prospectus or incorporated by reference therein. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undth

Appears in 1 contract

Sources: Distribution and Management Agreement (Consumer Portfolio Services Inc)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations~~ Underwriters and ~~warranties shall be deemed to be made continuously throughout~~ the ~~term of this Agreement~~QIU that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared by~~ declared effective under the ~~Company in conformity with the requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any~~ the Preliminary Prospectus or ~~requiring~~ the ~~recirculation~~ effectiveness of ~~a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if~~ the Registration Statement has been ~~declared effective), or~~ issued and no proceedings for such purpose have been instituted or, to the Company~~’s knowledge~~'s knowledge after due inquiry, are threatened by the ~~institution of~~Commission; the Preliminary Prospectus, ~~proceedings for any~~ at the time of ~~such purposes. When~~ filing thereof, complied in all material respects to the requirements of the Act; the Registration Statement ~~shall become effective and~~ complied when ~~any post-effective amendment thereto shall become~~ it became effective, complies and will comply, at the time of purchase and any additional time of purchase, in all material respects with the requirements of the Act and the Prospectus will comply, as of its date and at the time of purchase and any additional times of purchase, in all material respects with the requirements of the Act; the conditions to the use of Form S-3 have been satisfied; the Registration Statement ~~will not or~~ did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, 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 and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, 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, in light of the circumstances in under which they were made, not misleading~~. When~~ ; provided, however, that the Company makes no warranty or representation with respect to any statement contained in the Registration Statement is or ~~was declared effective~~ the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the ~~Commission and at all times subsequent thereto until~~ Company expressly for use in the ~~termination of~~ Registration Statement or the ~~offering~~Prospectus; the documents incorporated by reference in the Preliminary Prospectus, the ~~Prospectus (as amended~~ Registration Statement and the Prospectus, at the time they became effective or ~~supplemented, if the Company shall have~~ were filed with the ~~Commission any amendment thereof~~ Commission, complied in all material respects with the requirements of the Act or ~~supplement thereto)~~ the Exchange Act as applicable; and the Company has not distributed and will not distribute any offering material in connection with the offering or ~~did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light~~ sale of the ~~circumstances in which they were made~~Shares other than the Registration Statement, ~~not misleading~~the Preliminary Prospectus and the Prospectus. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to ~~own, lease and operate its properties and conduct~~ carry on its business as described in the Registration Statement and ~~Prospectus. The Company~~ the Prospectus and to own, lease and operate its properties, and each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (c) As of the date of this Agreement, the Company has an authorized and ~~no proceeding has~~ outstanding capitalization as set forth under the heading "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the time of purchase, the Company shall have an authorized and outstanding capitalization as set forth under the heading "As adjusted for this offering" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all outstanding shares of capital stock of the Company have been ~~instituted in~~ duly authorized and validly issued and are fully paid, non-assessable and not subject to any ~~such jurisdiction revoking, limiting~~ preemptive or ~~curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~similar rights. (d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the Registration Statement or the Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (e) This Agreement has ~~operated~~ been duly authorized, executed and delivered by the Company. (f) The resolution set forth in the certificate of designation of the Shares, the form of which is attached hereto as Exhibit A (the "CERTIFICATE OF DESIGNATION"), has been duly adopted by the Board of Directors of the Company, has not been modified, amended or revoked, is in full force and effect on the date hereof and is ~~operating~~ the only resolution adopted by the Board of Directors of the Company or any committee thereof relating to the number of authorized shares of or the rights, powers and preferences, and the qualifications, limitations and restrictions thereof, of the Shares; the execution of the Certificate of Designation by the Company and the filing of the Certificate of Designation with the Secretary of State of the State of Delaware (the "SECRETARY OF STATE") on behalf of the Company have been duly authorized by the Board of Directors of the Company. (g) The Shares have been duly authorized and, when issued and delivered against payment therefor as provided herein, will have been duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The Certificate of Designation and the capital stock of the Company, including the Shares and the Common Stock Shares, will conform in all material ~~compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary~~ respects to ~~own its properties and to conduct its business as described~~ the description thereof contained in the Registration Statement and the Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (eh) The Common Stock Shares have been duly authorized and validly reserved for issuance upon conversion of the Preferred Stock and are free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights and are sufficient in number to meet current conversion requirements, and such Common Stock Shares when so issued upon such conversion in accordance with the terms of the Certificate of Designation, will be validly issued and fully paid and non-assessable. (i) Neither the Company nor any of its subsidiaries is ~~not~~ (x) in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gj) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the filing of the Certificate of Designation with the Secretary of State, the issuance and sale of the Shares, the issuance of the Common Stock Shares and the consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus (including the related financing transactions) will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over~~ (other than registration of the ~~Company or over its properties is required for the execution and delivery of this Agreement~~ Shares and the ~~consummation by~~ Common Stock Shares under the ~~Company of the transactions herein contemplated~~Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the NASD), ~~threatened~~(ii) conflict with or constitute a breach of any of the terms or provisions of, ~~any action~~or a default under, ~~suit, claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties~~subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, ~~assets~~ which violation or ~~rights before~~ default could reasonably be expected to have a Material Adverse Effect, (iv) violate or conflict with any ~~court~~applicable law or any rule, ~~government~~ regulation, judgment, order or decree of any court or any governmental body or agency ~~or body, domestic or foreign,~~ having jurisdiction over the Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or ~~over~~ any of its ~~officers~~ subsidiaries is a party or ~~properties~~ by which the Company or ~~otherwise~~ any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, or (Avi) ~~might~~ result in the termination, suspension or revocation of any ~~material adverse change in the condition~~ Authorization (~~financial or otherwise), earnings, operations or business~~ as defined below) of the Company or ~~might materially and adversely affect~~ any of its ~~properties, assets~~ subsidiaries or ~~rights, or (B) might prevent consummation~~ result in any other impairment of the ~~transactions contemplated hereby~~rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (ik) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply Except as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (l) Except as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (m) Except as set forth in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (n) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (o) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (p) The accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and supporting schedules as of December 31, 2004 and December 31, 2003 and for each of the three years in the period ended December 31, 2004, included and incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company, as required by the Act and the Exchange Act. (q) The historical financial statements, together with related schedules and notes forming part of the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects with~~ supplement thereto), present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated in the Registration Statement and the Prospectus at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in compliance with the requirements of the Act and in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as ~~is otherwise~~ disclosed in therein; the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (other financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and ~~marketable title to all of the property, real~~ statistical information and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as data set forth in the Registration Statement and ~~Prospectus~~the Prospectus (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the ~~Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized~~ books and ~~has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge~~ records of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is are no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements ~~in conformity with generally accepted accounting principles. To maintain accountability for assets, access~~ that are required to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth be included in the Registration Statement and ~~Prospectus: (i)~~ the Prospectus that are not included as required; and the Company and ~~each entity~~ its subsidiaries do not have any liabilities or obligations, direct or contingent (including any off-balance sheet obligations) that ~~owns or possesses real property~~ would result in ~~which the Company holds~~ a ~~security interest is in material compliance with all material rules~~Material Adverse Effect, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be not disclosed in the Registration Statement and the Prospectus;. (~~iii~~r) ~~the~~ The Company ~~will not be required to make any future material capital expenditures to comply with Environmental Laws;~~ is not, and ~~(iv) no property which is owned~~, ~~leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant~~ after giving effect to the ~~Comprehensive Response, Compensation~~ offering and ~~Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und~~sale

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The conditions for use of Form S-3 under the Securities Act by the Company, as set forth in the General Instructions thereto, have been satisfied. (b) The Registration Statement on Form ~~S-11~~ S-3 (~~File No.~~ including any amendments thereto, if any) with respect to the ~~Certificates, including the Prospectus subject to completion,~~ Stock has (i) been prepared by the Company in conformity in all material respects with the requirements of the Securities Act, ~~and the Rules and Regulations of the Commission thereunder and has~~ (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. (bc) ~~As of the Effective Date~~The Registration Statement conforms, and ~~at all times subsequent thereto until~~ the ~~termination of the Offering,~~ Prospectus and any further amendments or supplements to the Registration Statement ~~and Prospectus~~or the Prospectus will, ~~and all amendments thereof and supplements thereto, will comply~~ when they become effective or ~~complied~~ are filed with the ~~provisions and~~ Commission, as the case may be, conform in all material respects to the requirements of the Securities Act and ~~the Rules~~ do not and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectuswill not, ~~or issued a stop order with respect to the offering~~ as of the ~~Certificates~~ applicable effective date (if as to the Registration Statement ~~has been declared effective~~and any amendment thereto) and as of the applicable filing date (as to the Prospectus only, and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein (as to the Prospectus only, in light of the circumstances under which they were made), or ~~instituted or,~~ necessary to make the ~~Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When~~ statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement ~~shall~~ or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein. (d) The documents incorporated by reference in the Registration Statement, the Prospectus or any amendment thereto, when they became effective or, were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and ~~when any post-effective amendment thereto shall become effective, the Registration Statement~~ will not ~~or did 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, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein ~~or necessary in order to make the statements therein, in light of the circumstances in which they were made,~~ not misleading. (ce) The Company ~~has~~ and each of its subsidiaries (as defined in Section 17) have been duly ~~incorporated~~ formed and is are validly existing ~~as a corporation~~ in good ~~standing~~ standing, where applicable, under the laws of ~~the State~~ their respective jurisdictions of ~~Minnesota~~organization, ~~with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is~~ are duly qualified to do business and is are in good ~~standing~~ standing, where applicable, in each jurisdiction in which ~~the~~ their respective ownership or lease of ~~its properties~~ property or the conduct of ~~its business~~ their respective businesses requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified or in good ~~standing~~ standing, individually or in the aggregate, would not have a material adverse effect on the ~~condition (~~general affairs, management, results of operations, consolidated financial ~~or otherwise)~~position, ~~earnings, operations~~ stockholders' equity or business of the ~~Company~~Company and its subsidiaries, taken as a whole, (a "Material Adverse Effect"), and ~~no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such~~ have all power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own ~~its~~ or hold their respective properties and to conduct ~~its business~~ the businesses in which they are engaged to execute and deliver this Agreement and to issue, sell and deliver the stock as ~~described~~ contemplated in this Agreement; and none of the ~~Registration Statement and Prospectus, all~~ subsidiaries of ~~which are, to~~ the Company~~’s knowledge~~, ~~valid and~~ other than dj Orthopedics, LLC, is a "significant subsidiary," as such term is defined in ~~full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations~~ Rule 405 of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are boundSecurities Act. (f) The Company has ~~full requisite power~~ an authorized capitalization as set forth in the Prospectus. All of the issued shares of capital stock of the Company have been duly and ~~authority~~ validly authorized and issued, were issued in compliance with U.S. federal and state securities laws, are fully paid and nonassessable and conform to ~~enter into~~ the description thereof contained in the Prospectus. All of the Company's options, and other rights to purchase or exchange any securities for shares of the Company's capital stock have been duly and validly authorized and issued and were issued in compliance with U.S. federal and state securities laws. All of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and issued and are fully paid and nonassessable, as applicable, and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for the liens of Wachovia Bank, National Association, pursuant to that certain credit agreement dated as of November 26, 2003 among dj Orthopedics, LLC, as Borrower, dj Orthopedics, Inc., the lenders named therein, Wachovia Bank, National Association, as Administrative Agent, ▇▇▇▇▇ Fargo Bank, National Association, as Syndication Agent and Bank of America, N.A., Bank of the West and Union Bank of California, N.A. as Documentation Agents, and except for dj Orthopedics France, S.A.S., 1% of which is held by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. (g) The shares of the Stock to be issued and sold by the Company to the Underwriters hereunder have been duly authorized and, when issued and delivered against payment therefor in accordance with this ~~Agreement~~ Agreement, will be duly and ~~perform~~ validly issued, fully paid and nonassessable; and the ~~transactions contemplated hereby~~Stock will conform in all respects to the descriptions thereof contained in the Prospectus. Upon payment for and delivery of the Stock to be sold by the Company pursuant to this Agreement, the Underwriters will acquire good and valid title to such Stock, in each case free and clear of all liens, encumbrances, equities, preemptive rights, subscription rights, other rights to purchase, voting or transfer restrictions and other claims created by the Company or any of its subsidiaries or any documents or agreements to which the Company or any of its subsidiaries is a party or is otherwise subject. (h) This Agreement has been duly authorized, executed and delivered by the ~~Company~~ Company. (i) The execution, delivery and ~~is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The~~ performance of this Agreement by the Company and the consummation of the transactions ~~herein~~ contemplated hereby will not conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under~~: (i)~~ , any indenture, mortgage, deed of ~~trust~~ trust, loan ~~agreement, bond, debenture, note,~~ agreement or ~~other evidence of indebtedness,~~ any ~~lease, contract, joint venture or~~ other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may be bound; (ii) the articles of incorporation~~ subsidiaries is bound or ~~bylaws~~ to which any of the ~~Company: or~~ property or assets of the Company or any of its subsidiaries is subject (~~iii)~~ except where such conflict, breach, violation or default would not reasonably be expected to have a Material Adverse Effect), nor will such actions result in any ~~applicable law~~violation of the provisions of the charter, by-laws, or other similar organizational document of the Company or any of its subsidiaries or any statute or any order, ~~rule, regulation, writ, injunction, judgment~~ rule or ~~decree~~ regulation of any ~~court, government~~ court or governmental agency or ~~body, domestic or foreign,~~ body having jurisdiction over the Company or ~~over~~ any of its ~~properties.~~ subsidiaries or any of their properties or assets; and except for the registration of the Stock under the Securities Act, the listing of the Stock by the New York Stock Exchange and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws or Blue Sky laws in connection with the purchase and distribution of the Stock by the Underwriters, and except as may be required by the National Association of Securities Dealers (~~g) No~~ "NASD"), under the federal or provincial laws of Canada, or under the laws of any other foreign jurisdiction in which the Stock may be offered and sold and where the failure to obtain such consent, approval, authorization or order, individually or in the aggregate, would not have a Material Adverse Effect, no consent, approval, authorization or order of of, or ~~qualification with~~ filing or registration with, any ~~court,~~ such court or governmental agency or ~~body, domestic or foreign, having jurisdiction over the Company or over its properties~~ body is required for the ~~execution~~ execution, delivery and ~~delivery~~ performance of this Agreement ~~and the consummation~~ by the Company of and the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (ij) ~~The Certificates to be sold hereunder by~~ Except as described in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been ~~duly authorized for issuance and sale pursuant~~ waived or satisfied) to ~~this Agreement and, when issued and delivered against payment therefor in accordance with~~ require the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, Company to file a registration ~~right, right of first refusal or other similar right exists~~ statement under the Securities Act with respect to any securities of the ~~Certificates~~ Company owned or to be ~~sold hereunder~~ owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company or under the ~~issuance and sale thereof~~Securities Act. The ~~Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part~~ holders of outstanding shares of the Company's capital stock are not entitled to preemptive or other rights to subscribe for the Stock. As of January 1, ~~enforceable against~~ 2004, except for (i) 3,332,231 shares of Common Stock reserved for the exercise of options outstanding; (ii) 1,271,209 shares of Common Stock reserved for issuance under the Company's employee stock purchase plan; and (iii) 4,628,119 shares of Common Stock reserved for issuance under the Company's stock option plans, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statementwere outstanding. (k) ~~Subsequent~~ The Company has not sold or issued any shares of Common Stock during the six-month period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or S of, the ~~respective dates as~~ Securities Act other than shares issued pursuant to employee benefit plans, qualified stock options plans or other employee compensation plans or pursuant to outstanding options, rights or warrants. (l) Neither the Company nor any of ~~which information is given~~ its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the ~~Registration Statement and~~ Prospectus, ~~except~~ any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as ~~is otherwise disclosed~~ set forth or contemplated in the ~~Registration Statement~~ Prospectus; and, except for the grant of options or issuance of shares of Common Stock pursuant to its stock incentive plans or employee stock purchase plans described in the Prospectus, since such date, there has not ~~been: (i)~~ been any change in the capital stock or ~~long term debt (including any capitalized lease obligation) or material increase in the short~~long-term debt of the ~~Company; (ii) any material adverse change,~~ Company or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of ~~operations or general condition of the Company; (iii) any transaction entered into by the Company~~ its subsidiaries that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which would reasonably ~~could~~ be expected to have a ~~material adverse effect on~~ Material Adverse Effect or that would reasonably be expected to materially affect the ~~condition (financial or otherwise), earnings, operations or business~~ prospects of the Company, other than as set forth in the Prospectus. (lm) ~~Except~~ The financial statements (including the related notes and supporting schedules) filed as ~~is otherwise expressly disclosed in~~ part of the Registration Statement or ~~Prospectus:~~included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved; provided, however, that the statements that are unaudited are subject to normal year-end adjustments and do not contain certain footnotes required by generally accepted accounting principles. (in) Ernst & Young LLP, who have certified certain financial statements of the Company, whose report appears in the Prospectus and who have delivered the E&Y initial letters referred to in Sections 9(k) or 9(l) (as applicable) hereof, are independent public accountants as required by the Securities Act. (o) To the Company's knowledge, Deloitte & Touche LLP, who have certified certain financial statements of OrthoLogic Corp., whose report appears in the Prospectus or is incorporated by reference therein and who have delivered the D&T initial letters referred to in Sections 9(m) or 9(n)(as applicable) hereof, are independent public accountants as required by the Securities Act. (p) None of the Company ~~has~~ or any of its subsidiaries owns any real property. The Company and each of its subsidiaries have good and marketable title to all ~~of the property, real and personal, and assets described in the Registration Statement or Prospectus as being~~ personal property owned by itthem, in each case free and clear of ~~any~~ all liens, encumbrances and defects, except such as are described in the Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and all ~~pledges~~assets, ~~liens~~real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, ~~security interests~~subsisting and enforceable leases (except when enforceability is limited by laws relating to bankruptcy and general principles of equity), ~~encumbrances~~with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries. (q) The Company and each of its subsidiaries carry, ~~equities~~or are covered by, ~~charges~~ insurance in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. (r) The Company and each of its subsidiaries own or ~~claims~~possess adequate licenses or other rights to use all patents, patent applications, inventions, trademarks, trade names, applications for registration of trademarks, service marks, service ▇▇▇▇ applications, copyrights, know-how, manufacturing processes, trade secrets, licenses and rights in any thereof and any other ~~than~~ intangible property and assets (herein called the "Proprietary Rights") necessary to conduct its business in the manner described in the Prospectus, except where the failure to so own or possess such as Proprietary Rights would ~~not~~ not, singularly or in the aggregate, have a Material Adverse Effect. All trade secrets belonging to the Company which are material ~~adverse effect on~~ to the ~~condition (financial or otherwise), earnings, operations or~~ business of the ~~Company; (ii)~~ Company and which have not been patented have been kept confidential. Except for the ~~agreements to which~~ litigation with Royce Medical, Inc. and the complaint filed by Aircast, Inc., neither the Company ~~is a party described in the Registration Statement~~ nor any of its subsidiaries has received any notice of infringement or conflict with asserted rights of others, and ~~Prospectus are valid agreements~~no action, ~~enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy~~suit, ~~insolvency~~arbitration or legal, ~~reorganization, moratorium~~ administrative or other ~~similar laws relating to~~ proceeding, or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by itinvestigation is pending, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code andor, to the knowledge of the Company, ~~no event has occurred that would cause~~ threatened, with respect to any Proprietary Rights which could result in any Material Adverse Effect. The Proprietary Rights of the Company and its subsidiaries do not, to ~~fail~~ the knowledge of the Company, infringe or conflict with any right or valid and enforceable patent of any third party, or any discovery, invention, product or process which is the subject of a patent application filed by any third party, known to ~~so qualify~~the Company which could have a Material Adverse Effect. To the knowledge of the Company, no person is infringing on or violating the Proprietary Rights owned or used by the Company or any of its subsidiaries which could result in a Material Adverse Effect. (ns) ~~The~~ Except as described in the Prospectus, there are no legal or governmental investigations or proceedings pending to which the Company ~~has timely filed (~~or ~~has timely requested an extension~~ any of ~~time~~ its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to ~~file) all necessary federal~~ the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and ~~state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or,~~ to the best of the Company’s 's knowledge, ~~could be asserted against the Company that might have a material adverse effect on the condition (financial~~ no such investigations or ~~otherwise), earnings, operations, business~~ proceedings are threatened or ~~properties of the Company, and all tax liabilities are adequately provided for in the books of the Company~~contemplated by governmental authorities or threatened by others. (ot) ~~The Company owns,~~ There are no contracts or ~~possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information~~ other documents which are ~~necessary for the conduct of its present or intended business as~~ required to be described in the Registration ~~Statement or Prospectus. The expiration of any patents~~Statement, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undProspect

Appears in 1 contract

Sources: Underwriting Agreement (Dj Orthopedics Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The ~~Registration Statement on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion, has~~ Preliminary Offering Memorandum and Final Offering Memorandum have been prepared by the Company for use by the Initial Purchasers in ~~conformity~~ connection with the Exempt Resales. No order or decree preventing the use of the Preliminary Offering Memorandum or the Final Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the ~~Securities~~ Act, has been issued and no proceeding for that purpose has commenced or is pending or, to the ~~Rules and Regulations~~ knowledge of the ~~Commission thereunder and has been filed with the Commission under the Securities Act~~Company, is contemplated. (b) As The Preliminary Offering Memorandum, as of ~~the Effective Date~~its date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. ~~When~~ The Disclosure Package, at the ~~Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering~~Applicable Time, ~~the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or~~ did not contain any untrue statement of a material fact or omit to state a material fact ~~required~~ necessary in order to ~~be stated therein~~ make the statements therein, in the light of the circumstances under which they were made, not misleading. The Final Offering Memorandum as of its date and on the Closing Date did not and will not (and any amendment or supplement thereto, at the date thereof and at the Closing Date will not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that this representation and warranty does not apply to statements in or omissions from the Preliminary Offering Memorandum, the Disclosure Package or Final Offering Memorandum or any such amendment or supplement made in reliance upon and in conformity with information relating to the Initial Purchasers furnished to the Company through the Representatives in writing by or on behalf of the Initial Purchasers expressly for use therein. (c) The Company has not and will not make any offer to sell or solicitation of an offer to buy the Notes that would constitute a “free writing prospectus” (if the offering of the Notes was made pursuant to a registered offering under the Securities Act), as defined in Rule 405 under the Securities Act (a “Free Writing Offering Document”)) without the prior consent of the Representatives; any such Free Writing Offering Document the use of which has been previously consented to by the Initial Purchasers is set forth substantially in form and substance as attached hereto on Schedule II; if at any time following issuance of a Free Writing Offering Document any event occurred or occurs as a result of which such Free Writing Offering Document conflicts with the information in the Preliminary Offering Memorandum, the Disclosure Package or the Final Offering Memorandum or, when taken together with the information in the Preliminary Offering Memorandum, the Disclosure Package or the Final Offering Memorandum, includes an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances ~~in which they were made~~then prevailing, not misleading, promptly after becoming aware thereof, the Company will give notice thereof to the Initial Purchasers through the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission. (cd) The industry-related, market-related and customer-related data and estimates included under the captions “Summary” and “Business” in the Disclosure Package and the Final Offering Memorandum are based on or derived from sources which the Company believes to be reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources. (e) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~the State~~ its jurisdiction of ~~Minnesota~~incorporation, ~~with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company~~ is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which ~~the~~ its ownership or lease of ~~its properties~~ property or the conduct of its business requires such ~~qualification~~ qualification, and has all corporate power and authority necessary to hold its properties and to conduct the business in which it is engaged except where the failure to be so qualified or in good standing would not individually or in the aggregate, have a material adverse effect on the ~~condition (~~condition, financial or otherwise), ~~earnings~~stockholder’s equity, results of operations or business of the ~~Company~~Company and its Subsidiaries, ~~and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing~~taken as a whole, or ~~seeking~~ the authority or the ability of the Company to ~~revoke~~perform its obligations under the Transaction Documents (a “Material Adverse Effect”). (f) The entities listed on Schedule III hereto are all of the direct and indirect subsidiaries of the Company (the “Subsidiaries”); each Subsidiary of the Company is duly incorporated or organized and validly existing as a corporation or other applicable legal entity, ~~limit~~ as the case may be, in good standing (to the extent such qualification exists) under the laws of the jurisdiction of its incorporation or ~~curtail~~organization, ~~such~~ with corporate or other requisite power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the ~~Registration Statement~~ Disclosure Package and ~~Prospectus~~the Final Offering Memorandum, ~~all of which are,~~ and each Subsidiary is in good standing as a foreign corporation or other applicable legal entity (to the ~~Company’s knowledge~~extent such qualification exists), ~~valid and~~ as the case may be, in ~~full force and effect. The Company is conducting~~ each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in ~~substantial compliance with all applicable laws~~good standing would not, ~~rules and regulations of~~ individually or in the ~~jurisdictions in which it is conducting business~~aggregate, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertieshave a Material Adverse Effect. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (fg) The Company has ~~full~~ an authorized capitalization, as of December 31, 2005, as set forth in the Disclosure Package and the Final Offering Memorandum, and all of the issued shares of common stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and are owned, directly or indirectly, by EFS-SSCC Holdings, LLC (“Holdings”) and all of the issued shares of capital stock or ownership interests as the case may be of each Subsidiary have been duly authorized and validly issued and, in the case of capital stock, are fully paid and non-assessable and (except for pledges in favor of Deutsche Bank Trust Company Americas, as collateral agent (the “Collateral Agent”) under the Pledge Agreement, dated as of August 8, 2003, by and among the Company, Deutsche Bank Trust Company Americas, as trustee and the Collateral Agent) will be as of the Closing Date owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities, claims or adverse interests, except as set forth in or contemplated in the Disclosure Package and the Final Offering Memorandum. (h) The Company has all requisite corporate power and authority to enter into ~~this Agreement~~ the Indenture and perform ~~the transactions contemplated hereby~~its obligations thereunder. ~~This Agreement~~ The Indenture has been duly ~~authorized, executed~~ and ~~delivered~~ validly authorized by the ~~Company~~ Company. Assuming due authorization, execution and ~~is a~~ delivery by the Trustee, the Indenture, upon its execution and delivery, will constitute the valid and binding agreement ~~on the part~~ of the ~~Company,~~ Company enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof enforceability may be limited by ~~applicable~~ bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights ~~generally~~ generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by ~~judicial limitations on~~ an implied covenant of good faith and fair dealing. No qualification of the ~~right~~ Indenture under the U.S. Trust Indenture Act of ~~specific performance; and~~1939, as amended (the “1939 Act”), is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales. On the Closing Date, the Indenture will conform in all material respects to the requirements of the 1939 Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder. (~~iii~~i) The Company has all requisite corporate power and authority to sell and issue the Notes and perform its obligations thereunder. The Notes have been duly and validly authorized by the Company ~~has~~ for issuance and sale pursuant to this Agreement and the Indenture and, when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will be in the form contemplated by the Indenture and will have been validly issued and delivered, and will constitute valid and binding obligations of the Company, enforceable ~~leases for all properties described~~ against the Company in ~~the Registration Statement and Prospectus as leased by it~~accordance with their terms, except as ~~the enforcement thereof~~ such enforceability may be limited by ~~applicable~~ bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other ~~similar~~ laws relating to or affecting creditors’ rights ~~generally~~ generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by ~~judicial limitations~~ an implied covenant of good faith and fair dealing. (j) There is and has been no failure on the ~~right~~ part of ~~specific performance~~the Company and any of the Company’s directors or officers, in their capacities as such, to comply with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith, to the extent such Act, rules and regulations are applicable to the Company. (k) The Company has all requisite corporate power and authority to issue the Exchange Notes and perform its obligations thereunder. ~~Except as set forth~~ The Exchange Notes have been duly and validly authorized by the Company. If and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer, the Exchange Notes will be in the ~~Registration Statement~~ form contemplated by the Indenture and ~~Prospectus,~~ will constitute valid and binding obligations of the Company ~~owns~~ entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or ~~leases~~ other laws relating to or affecting creditors’ rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. (l) The Company has all ~~such properties as are necessary~~ requisite corporate power and authority to enter into this Agreement and perform its ~~operations as now conducted~~obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Company. (m) The ~~Company was organized~~ issuance and ~~has been operated to qualify as a real estate investment trust under Section 856~~ sale of the ~~Internal Revenue Code and~~Notes on the Closing Date, the compliance by the Company with all of the provisions of the Notes and the Exchange Notes, the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Indenture by the Company and the consummation of the transactions contemplated hereby and by each of the foregoing documents (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the material property or assets of the Company or any of its Subsidiaries is subject, (ii) will not result in any violation of the provisions of the charter, by-laws or other constituent documents of the Company or any of its Subsidiaries, (iii) will not violate any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets except for such violations that would not individually or in the aggregate have a Material Adverse Effect, (iv) will not result in the imposition or creation of (or the obligation to create or impose) a material lien, encumbrance, equity, claim or adverse interest under any agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or their respective properties or assets is bound, or (v) will not result in the suspension, termination or revocation of any Material Authorization (as defined below) of the Company or any of the Subsidiaries or any other impairment of the rights of the holder of any such Material Authorization. No consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the issue and sale of the Notes or the execution, delivery and performance of this Agreement, the Registration Rights Agreement or the Indenture by the Company and the consummation of the transactions contemplated hereby and by each of the foregoing documents, except for the filing of one or more registration statements by the Company with the Commission pursuant to the ~~knowledge~~ Act as required by the Registration Rights Agreement and the order by the Commission in declaring such registration statements effective, and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the ~~Company, no event has occurred that would cause~~ Notes by the ~~Company to fail to so qualify~~Initial Purchasers in the manner contemplated hereby and by the Disclosure Package and the Final Offering Memorandum. (n) ~~The Company has timely filed (~~There are no contracts, agreements or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of understandings between the Company, on the one hand, and ~~all tax liabilities are adequately provided for~~ any person, on the other hand, granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the ~~books of~~ securities registered pursuant to the ~~Company~~Registration Statements or in any securities being registered pursuant to any other registration statement filed by the Company under the Act. (o) ~~The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know~~During the six-~~how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for~~ month period preceding the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business date of the ~~Company~~ Disclosure Package and the ~~Company has not received any notice of~~Final Offering Memorandum, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects none of the Company, any of its respective affiliates or any other person acting on its behalf has offered or sold to any person any Notes or any securities of the same or a similar class as the Notes, other than Notes offered or sold to the Initial Purchasers hereunder and for the avoidance of doubt, other than the concurrent offering of up to $230.0 million of Senior Notes due 2016 by Southern Star Central Gas Pipeline, Inc. The Company will take all necessary precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Act) of any Notes or any substantially similar security issued by the Company, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Act, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Act. (p) The ~~Company has not taken~~ historical financial statements (including the related notes and ~~will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others~~supporting schedules) ~~which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined~~ included in the ~~Exchange Act or otherwise~~Disclosure Package and the Final Offering Memorandum present fairly the financial condition, results of ~~the price of any security~~ operations, changes in financial position and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to ~~facilitate~~ which they apply, (ii) such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles in the ~~sale or resale of~~ United States consistently applied throughout the ~~Certificates. The Company has not distributed and will not distribute prior to~~ periods involved, (iii) the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materialssupporting schedules, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth included in the ~~Registration Statement~~ Disclosure Package and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undt

Appears in 1 contract

Sources: Purchase Agreement (Southern Star Central Corp)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared by~~ declared effective under the ~~Company in conformity with the requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any~~ the Preliminary Prospectus or ~~requiring~~ the ~~recirculation~~ effectiveness of ~~a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if~~ the Registration Statement has been ~~declared effective), or~~ issued and no proceedings for such purpose have been instituted or, to the Company~~’s knowledge~~'s knowledge after due inquiry, are threatened by the ~~institution of~~Commission; the Preliminary Prospectus, ~~proceedings for any~~ at the time of ~~such purposes. When~~ filing thereof, complied in all material respects to the requirements of the Act; the Registration Statement ~~shall become effective and~~ complied when ~~any post-effective amendment thereto shall become~~ it became effective, complies and will comply, at the time of purchase and any additional time of purchase, in all material respects with the requirements of the Act and the Prospectus will comply, as of its date and at the time of purchase and any additional times of purchase, in all material respects with the requirements of the Act; the conditions to the use of Form S-3 have been satisfied; the Registration Statement ~~will not or~~ did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, 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 and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, 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, in light of the circumstances in under which they were made, not misleading~~. When~~ ; provided, however, that the Company makes no warranty or representation with respect to any statement contained in the Registration Statement is or ~~was declared effective~~ the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the ~~Commission and at all times subsequent thereto until~~ Company expressly for use in the ~~termination of~~ Registration Statement or the ~~offering~~Prospectus; the documents incorporated by reference in the Preliminary Prospectus, the ~~Prospectus (as amended~~ Registration Statement and the Prospectus, at the time they became effective or ~~supplemented, if the Company shall have~~ were filed with the ~~Commission any amendment thereof~~ Commission, complied in all material respects with the requirements of the Act or ~~supplement thereto)~~ the Exchange Act as applicable; and the Company has not distributed and will not distribute any offering material in connection with the offering or ~~did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light~~ sale of the ~~circumstances in which they were made~~Shares other than the Registration Statement, ~~not misleading~~the Preliminary Prospectus and the Prospectus. (cb) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to ~~own, lease and operate its properties and conduct~~ carry on its business as described in the Registration Statement and ~~Prospectus. The Company~~ the Prospectus and to own, lease and operate its properties, and each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). (c) As of the date of this Agreement, the Company has an authorized and ~~no proceeding has~~ outstanding capitalization as set forth under the heading "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the time of purchase, the Company shall have an authorized and outstanding capitalization as set forth under the heading "As adjusted for this offering" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all outstanding shares of capital stock of the Company have been ~~instituted in~~ duly authorized and validly issued and are fully paid, non-assessable and not subject to any ~~such jurisdiction revoking, limiting~~ preemptive or ~~curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~similar rights. (d) The entities listed on Schedule B hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the Registration Statement or the Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (e) This Agreement has ~~operated~~ been duly authorized, executed and delivered by the Company. (f) The resolution set forth in the certificate of designation of the Shares, the form of which is attached hereto as Exhibit A (the "CERTIFICATE OF Designation"), has been duly adopted by the Board of Directors of the Company, has not been modified, amended or revoked, is in full force and effect on the date hereof and is ~~operating~~ the only resolution adopted by the Board of Directors of the Company or any committee thereof relating to the number of authorized shares of or the rights, powers and preferences, and the qualifications, limitations and restrictions thereof, of the Shares; the execution of the Certificate of Designation by the Company and the filing of the Certificate of Designation with the Secretary of State of the State of Delaware (the "SECRETARY OF STATE") on behalf of the Company have been duly authorized by the Board of Directors of the Company. (g) The Shares have been duly authorized and, when issued and delivered against payment therefor as provided herein, will have been duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The Certificate of Designation and the capital stock of the Company, including the Shares and the Common Stock Shares, will conform in all material ~~compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary~~ respects to ~~own its properties and to conduct its business as described~~ the description thereof contained in the Registration Statement and the Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (eh) The Common Stock Shares have been duly authorized and validly reserved for issuance upon conversion of the Preferred Stock and are free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights and are sufficient in number to meet current conversion requirements, and such Common Stock Shares when so issued upon such conversion in accordance with the terms of the Certificate of Designation, will be validly issued and fully paid and non-assessable. (i) Neither the Company nor any of its subsidiaries is ~~not~~ (x) in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gj) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the filing of the Certificate of Designation with the Secretary of State, the issuance and sale of the Shares, the issuance of the Common Stock Shares and the consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over~~ (other than registration of the ~~Company or over its properties is required for the execution and delivery of this Agreement~~ Shares and the ~~consummation by~~ Common Stock Shares under the ~~Company of the transactions herein contemplated~~Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the NASD), ~~threatened~~(ii) conflict with or constitute a breach of any of the terms or provisions of, ~~any action~~or a default under, ~~suit, claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties~~subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, ~~assets~~ or, in the case of this clause (iii), which violation or ~~rights before~~ default could reasonably be expected to have a Material Adverse Effect, (iv) violate or conflict with any ~~court~~applicable law or any rule, ~~government~~ regulation, judgment, order or decree of any court or any governmental body or agency ~~or body, domestic or foreign,~~ having jurisdiction over the Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (v) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or ~~over~~ any of its ~~officers~~ subsidiaries is a party or ~~properties~~ by which the Company or ~~otherwise~~ any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, or (Avi) ~~might~~ result in the termination, suspension or revocation of any ~~material adverse change in the condition~~ Authorization (~~financial or otherwise), earnings, operations or business~~ as defined below) of the Company or ~~might materially and adversely affect~~ any of its ~~properties, assets~~ subsidiaries or ~~rights, or (B) might prevent consummation~~ result in any other impairment of the ~~transactions contemplated hereby~~rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (ik) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply Except as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (l) Except as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect. All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (m) Except as set forth in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. (n) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect. (o) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (p) The accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and supporting schedules as of December 31, 2002 and December 31, 2001 and for each of the two years in the period ended December 31, 2002, included and incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company, as required by the Act and the Exchange Act, and Arthur Andersen LLP, who have certified the consolidated financial s▇▇▇▇▇▇n▇▇ ▇▇▇ ▇he year ended December 31, 2000, included and incorporated by reference in the Offering Memorandum, were, at the time of the certification, independent public accountants with respect to the Company, as required by the Act and the Exchange Act. (q) The historical financial statements, together with related schedules and notes forming part of the Registration Statement and the Prospectus (and any amendment or ~~incorporated therein by reference) comply in all material respects with~~ supplement thereto), present fairly the ~~requirements of the Securities Act and fairly present the~~ consolidated financial ~~position and the~~ position, results of operations and changes in financial position of the Company and its subsidiaries on the basis stated in the Registration Statement and the Prospectus at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in compliance with the requirements of the Act and in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as ~~is otherwise~~ disclosed in therein; the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (other financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and ~~marketable title to all of the property, real~~ statistical information and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as data set forth in the Registration Statement and ~~Prospectus~~the Prospectus (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the ~~Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized~~ books and ~~has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge~~ records of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is are no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are ~~applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is~~ required to be ~~disclosed~~ included in the Registration Statement and the ~~Prospectus; (iii)~~ Prospectus that are not included as required; and the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and ~~Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und~~its s

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees with ~~the Underwriter as follows~~each Underwriter, ~~which representations~~ each Selling Stockholder and ~~warranties shall be deemed to be made continuously throughout the term of this Agreement~~Post that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to~~ has become effective; no stop order suspending the ~~Certificates~~effectiveness of the Registration Statement is in effect, ~~including the Prospectus subject to completion, has been prepared~~ and no proceedings for such purpose are pending before or threatened by the ~~Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~Commission. (b) As For purposes of this Agreement, the ~~Effective Date~~“Applicable Time” is 5:00 p.m. (Eastern time) on August 8, ~~and at all times subsequent thereto until~~ 2022. (i) 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 ~~termination of the Offering~~statements therein not misleading, (ii) the Registration Statement and ~~Prospectus~~the Prospectus comply and, ~~and all amendments thereof and supplements thereto~~as amended or supplemented, if applicable, will comply ~~or complied~~ in all material respects with ~~the provisions and requirements of~~ the Securities Act and the ~~Rules~~ applicable rules and ~~Regulations. Neither~~ regulations of the Commission ~~nor~~ thereunder, (iii) the Time of Sale Prospectus, as of the Applicable Time, does not, and at the time of each sale of the Stock in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Delivery Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any ~~state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation~~ untrue statement of a ~~Preliminary~~ 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, ~~or issued a stop order with respect to the offering~~ as of the ~~Certificates (if the Registration Statement has been declared effective)~~Applicable Time, or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did does not 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 and (v) the Prospectus does 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 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 do not apply to information contained in or omitted from the Registration Statement, the Time of Sale Prospectus or the Prospectus in reliance upon and in conformity with information relating to (i) any Underwriter, furnished to the Company in writing through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 9(f), (ii) each Selling Stockholder, furnished to the Company in writing by such Selling Stockholder specifically for inclusion therein, which information is limited to the legal name, and the number of shares of Stock offered by, such Selling Stockholder (with respect to each Selling Stockholder, such Selling Stockholder’s “Selling Stockholder Information”) or (iii) Post, furnished to the Company in writing by Post specifically for inclusion therein, which information is limited to the information in the row beginning with “Post Holdings, Inc.” in the table appearing under the caption “Selling Stockholders” in the Time of Sale Prospectus and the Prospectus (the “Post Information”). (c) The documents incorporated by reference in the Time of Sale Prospectus and the Prospectus, when they were filed with the Commission, conformed in all material respects to the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission, will conform, in all material respects, to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in under which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have No documents were filed with the Commission ~~any amendment thereof or supplement thereto) will not or did not contain any untrue statement~~ since the Commission’s close of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the ~~condition (financial or otherwise)~~business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.except as set forth on Schedule V(b) hereto; (d) The Company ~~has operated~~ is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in 433 under the ~~Registration Statement and Prospectus, all of which are, to~~ Securities Act. Any free writing prospectus that the ~~Company’s knowledge, valid and in full force and effect. The~~ Company is ~~conducting its business~~ required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in ~~substantial compliance~~ accordance with ~~all~~ the requirements of the Securities Act and the applicable ~~laws,~~ rules and regulations of the ~~jurisdictions in which it is conducting business, and~~ Commission thereunder. Each free writing prospectus that the Company has filed, or is ~~not in material violation~~ required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of ~~any applicable law, order, rule, regulation, writ, injunction, judgment~~ or ~~decree of any court, government~~ used or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument referred to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated complies or will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and ~~fairly present~~ the ~~financial position~~ applicable rules and ~~the results of operations~~ regulations of the ~~Company at the respective dates and~~ Commission thereunder. Except for the ~~respective periods~~ free writing prospectuses, if any, identified in Schedule V(a) hereto, and electronic road shows, if any, each furnished to ~~which they apply in accordance with generally accepted accounting principles consistently applied throughout~~ you before first use, the ~~periods involved;~~ Company has not prepared, used or referred to, and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (will not, without your prior consent, prepare, use or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statementrefer to, any free writing prospectus. (ke) ~~Subsequent~~ The Company and each of the Subsidiaries (as defined below) has been duly incorporated or organized (as applicable), is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the ~~respective dates as~~ conduct of ~~which information is given in the Registration Statement and Prospectus~~its businesses requires such qualification, except ~~as is otherwise disclosed~~ where the failure to be so qualified or in ~~the Registration Statement~~ good standing would not, individually or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, ~~are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which~~ reasonably ~~could~~ be expected to have a material adverse effect on the condition (financial or otherwise), ~~earnings~~results of operations, ~~operations~~ stockholders’ equity, properties or business of the Company and the Subsidiaries, taken as a whole (a “Material Adverse Effect”). The Company and each of the Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries set forth on Schedule VI hereto (each, a “Subsidiary” and collectively, the “Subsidiaries”). (f) The Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus (except for subsequent issuances of capital stock, if any, pursuant to employee benefit plans described in each of the Time of Sale Prospectus and the Prospectus), and all of the issued shares of capital stock of the Company, as of the Delivery Date have been (or, in the case of the Stock, will be) duly authorized and validly issued, and are fully paid and non-assessable. All of the issued shares of capital stock of the Company and each of the Subsidiaries (as applicable) and the other ownership interests of each of the Subsidiaries (as applicable) have been duly authorized and validly issued, are fully paid and non-assessable and (except as set forth in each of the Time of Sale Prospectus and the Prospectus) and, in the case of such shares of capital stock or other ownership interests of each of the Subsidiaries, are owned directly or indirectly by such Subsidiaries, free and clear of all liens, encumbrances, equities or claims, except for (i) liens securing the Company’s senior secured credit facilities and (ii) such other liens, encumbrances, equities or claims as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (g) The shares of the Stock have been duly authorized and validly issued and are fully paid and non-assessable, and the shares of the Stock are not subject to any preemptive or similar rights. The shares of the Stock conform in all material respects to the description thereof in each of the Time of Sale Prospectus and the Prospectus. (h) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company. (li) ~~Except~~ The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions to which it is a party contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus (including the Share Repurchase) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of any of the Company or the Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which any of the Company or the Subsidiaries is a party or by which any of the Company or the Subsidiaries is bound or to which any of the property or assets of any of the Company or the Subsidiaries is subject; (ii) result in any violation of the provisions of the charter or bylaws (or similar organizational documents) of any of the Company or the Subsidiaries; or (iii) result in any violation by the Company or the Subsidiaries of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Company or the Subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), conflicts, breaches, violations, defaults, liens, charges or encumbrances that would not reasonably be expected to have a Material Adverse Effect. (j) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over any of the Company or the Subsidiaries or any of their respective properties or assets is required for the execution, delivery and performance by the Company of this Agreement, the issue of the Stock by the Company to Post and the consummation by the Company of the transactions to which it is a party contemplated hereby and by the Registration Statement, the Time of Sale Prospectus, except for such consents, approvals, authorizations, orders, filings, registrations or qualifications (w) as ~~is otherwise expressly disclosed~~ may be required under state securities or Blue Sky laws or foreign laws in connection with the purchase and distribution of the Stock by the Underwriters, (x) with respect to the Financial Industry Regulatory Authority (“FINRA”), (y) as may be required under the rules of The New York Stock Exchange or (z) as have been obtained or made and are in full force and effect. (k) The historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Time of Sale Prospectus and Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act, present fairly the financial condition, results of operations and cash flows of the Company at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved. All disclosures included or incorporated by reference in the Registration ~~Statement or Prospectus:~~ Statement, the Time of Sale Prospectus and the Prospectus regarding “non-GAAP financial measures” (ias such term is defined by the rules and regulations of Commission) ~~the Company has good and marketable title to~~ comply in all material respects with Regulation G of the ~~property, real and personal~~Exchange Act, and ~~assets described~~ Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration ~~Statement or~~ Statement, Time of Sale Prospectus ~~as being owned by it, free~~ and ~~clear of any~~ the Prospectus fairly presents the information called for in all material respects and ~~all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on~~ has been prepared in accordance with the ~~condition (financial or otherwise), earnings, operations or business of the Company;~~Commission’s rules and guidelines applicable thereto. (iil) ~~the agreements to which the Company is a party described~~ The pro forma financial information included in the Registration ~~Statement~~ Statement, Time of Sale Prospectus and the Prospectus ~~are valid agreements~~(collectively, ~~enforceable by~~ the ~~Company except as~~ “Pro Forma Information”) include assumptions that provide a reasonable basis for presenting the ~~enforcement thereof may be limited by applicable bankruptcy~~significant effects directly attributable to the transactions and events described therein, ~~insolvency~~the related pro forma adjustments give appropriate effect to those assumptions, ~~reorganization, moratorium or other similar laws relating~~ and the pro forma adjustments reflect the proper application of those adjustments to ~~or affecting creditors’ rights generally or by judicial limitations on~~ the ~~right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described~~ historical financial statement amounts in the ~~Registration Statement and Prospectus~~ Pro Forma Information. The Pro Forma Information complies as ~~leased by it, except as~~ to form in all material respects with the ~~enforcement thereof may be limited by~~ applicable ~~bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on~~ requirements of Rule 11-02 of Regulation S-X under the ~~right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted~~Securities Act. (m) ~~The Company was organized and~~ PricewaterhouseCoopers LLP, which has ~~been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge~~ audited certain financial statements of the Company, ~~no event~~ whose reports appear or are incorporated by reference in the Time of Sale Prospectus and which has ~~occurred that would cause~~ delivered the initial letter referred to in Section 8(f) hereof, are independent registered public accountants as required by the Securities Act and the rules and regulations thereunder and the rules and regulations of the Public Company ~~to fail to so qualify~~Accounting Oversight Board (the “PCAOB”). (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable ~~assurance~~ assurances that (i) transactions are executed in accordance with management’s general or specific ~~authorizations and~~ authorization, (ii) transactions are recorded as necessary (A) to permit preparation of the financial statements in conformity with generally accepted accounting ~~principles. To~~ principles or any other criteria applicable to such statements and (B) to maintain accountability for assets, (iii) access to the assets is permitted only in accordance with management’s general or specific authorization, ~~and~~ (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any ~~differences.~~ differences and (rv) ~~Except as set forth~~ the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration ~~Statement~~ Statement, the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the Time of Sale Prospectus and the Prospectus: , since the end of the Company’s most recent audited fiscal year, (i) the Company has not been advised of or become aware of any material weakness in the Company’s internal control over financial reporting (whether or not remediated) and ~~each entity~~ (ii) there has been no change in the Company’s internal control over financial reporting that ~~owns~~ has materially affected, or ~~possesses real property~~ is reasonably likely to materially affect, the Company’s internal control over financial reporting. (o) The Company maintains disclosure controls and procedures (as such term is defined in ~~which~~ Rule 13a-15(e) under the ~~Company holds a security interest is in~~ Exchange Act) that complies with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material ~~compliance with all material rules, laws and regulations~~ information relating to the ~~use~~Company and the Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and to the Company’s knowledge, ~~treatment, storage~~ such disclosure controls and ~~disposal of toxic substances and protection of health or~~ procedures are effective in all material respects to perform the ~~environment (the “Environmental Laws”)~~ functions for which ~~are applicable to its business;~~they were established. (iip) Since the date of the most recent balance sheet of the Company reviewed or audited by PricewaterhouseCoopers LLP, the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undadvi

Appears in 1 contract

Sources: Underwriting Agreement (Bellring Brands, Inc.)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the Underwriter ~~as follows, which representations~~ and ~~warranties shall be deemed to be made continuously throughout~~ the ~~term of this Agreement~~Selling Stockholders that: (a) The Registration Statement ~~on Form S-11~~ has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (~~File No. ) with respect~~ as defined in Rule 405 under the Act), and, as of the determination date applicable to the ~~Certificates~~Registration Statement (and any amendment thereof) and the offering contemplated hereby, ~~including the Prospectus subject to completion, has been prepared by~~ the Company is a “well-known seasoned issuer” as defined in ~~conformity with~~ Rule 405 under the ~~requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any Preliminary~~ the Basic Prospectus, the Prospectus Supplement, the Prospectus or ~~requiring the recirculation of a Preliminary~~ any Permitted Free Writing Prospectus, or ~~issued a stop order with respect to~~ the ~~offering~~ effectiveness of the ~~Certificates (if the~~ Registration ~~Statement~~ Statement, has been ~~declared effective)~~issued, or and no proceedings for such purpose have been instituted or, to the Company’s ~~knowledge~~knowledge after due inquiry, are threatened by the ~~institution of~~Commission. (b) The Disclosure Package, ~~proceedings for~~ as of the Applicable Time did not, and as of the time of purchase will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of ~~such purposes. When~~ the circumstances under which they were made, not misleading; each of the Prospectus Supplement and the Prospectus, as amended and supplemented, as of the date thereof and as of the time of purchase, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration ~~Statement shall become effective and when any post-effective amendment thereto shall become effective~~Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the time of purchase will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus. (c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not ~~or did 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~~therein not misleading; the Basic Prospectus, ~~in light~~ as of the ~~circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ time of the ~~offering~~filing thereof, ~~the Prospectus (~~and as amended or ~~supplemented, if~~ supplemented as of the ~~Company shall have filed with~~ time of the ~~Commission~~ filing of any amendment ~~thereof~~ or supplement thereto) , did not and will not ~~or did not~~ contain ~~any~~ an untrue statement of a material fact or omit to state a any material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein. (d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) ~~The~~ and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriter is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares contemplated by the Registration Statement. (e) Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (~~financial~~ a “Material Adverse Effect”). (f) All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or ~~otherwise~~similar rights. (g) The entities listed on Schedule D hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), ~~earnings~~except for (i) Liens described in the Registration Statement, ~~operations~~ the Basic Prospectus, the Prospectus or ~~business~~ any Permitted Free Writing Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The Shares to be sold by the Selling Stockholders have been duly and validly authorized and issued and are fully paid, non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The capital stock of the Company, including the Shares, will conform in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Basic Prospectus, the Prospectus and ~~no proceeding has been instituted in~~ any ~~such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~Permitted Free Writing Prospectus. (dj) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and Neither the Company nor any of its subsidiaries is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (ex) ~~The Company is not~~ in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gk) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the sale of the Shares to be sold by the Selling Stockholders pursuant hereto and the consummation of the transactions contemplated hereby will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company~~ (other than registration of the ~~transactions herein contemplated~~Shares under the Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the National Association of Securities Dealers, ~~threatened~~Inc. (“NASD”)), (ii) conflict with or constitute a breach of any ~~action~~of the terms or provisions of, ~~suit~~or a default under, ~~claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties, assets~~ subsidiaries is a party or ~~rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ by which the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of ~~the Certificates to be sold hereunder by the Company~~ its subsidiaries or ~~the issuance and sale thereof. The Indenture has been duly authorized~~their respective property is bound, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which ~~has expressed its opinion with respect to certain of the financial statements included as a part (whether filed~~ violation or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which default could reasonably ~~could~~ be expected to have a ~~material adverse effect on~~ Material Adverse Effect, (iv) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the ~~condition~~ Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (~~financial~~ v) result in the imposition or ~~otherwise)~~creation of (or the obligation to create or impose) a Lien under, ~~earnings~~any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, ~~operations~~ or ~~business~~ (vi) result in the termination, suspension or revocation of any Authorization (as defined below) of the ~~Company~~Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (l) Except as ~~is otherwise expressly disclosed~~ set forth in the Registration Statement (excluding the exhibits thereto), the Basic Prospectus and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or ~~Prospectus:~~the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (im) Except as set forth in the Registration Statement, the Basic Prospectus and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company ~~has good and marketable title~~ or any of its subsidiaries is or could be a party or to ~~all~~ which any of their respective property is or could be subject, which might result, singly or in the ~~property~~aggregate, ~~real and personal~~in a Material Adverse Effect. All legal or governmental proceedings, ~~and assets~~ affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements an exhibit to ~~which the Company is a party described in~~ the Registration Statement ~~and Prospectus are valid agreements, enforceable by the Company except~~ have been so described or filed as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performancerequired. Except as set forth in the Registration Statement (excluding the exhibits thereto), the Basic Prospectus and the Prospectus, neither the Company ~~owns~~ nor any of its subsidiaries has violated any foreign, federal, state or ~~leases all such properties as are necessary~~ local law or regulation relating to ~~its operations as now conducted.~~ the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (~~m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856~~ “Environmental Laws”), or any provisions of the ~~Internal Revenue Code and~~Foreign Corrupt Practices Act of 1977, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Companyamended, and ~~all tax liabilities are adequately provided~~ the rules and regulations thereunder, except for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights thatsuch violations which, singly or in the aggregate, ~~if the subject of an unfavorable decision, ruling or finding, might~~ would not have a ~~material adverse effect~~ Material Adverse Effect. (n) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the ~~condition~~ aggregate, have a Material Adverse Effect. (~~financial or otherwise), earnings, operations, business or business prospects~~ o) Each of the ~~Company~~Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an “Authorization”) of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (p) The ~~Company has not taken~~ accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and ~~will not take~~supporting schedules as of December 31, ~~directly or indirectly~~2006 and December 31, ~~any action (~~2005 and ~~does not know~~ for each of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined the three years in the ~~Exchange Act~~ period ended December 31, 2006, included or ~~otherwise~~incorporated by reference in the Registration Statement, of the ~~price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed~~ Basic Prospectus and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken independent registered public accountants with respect to ~~any differences. (r) Except~~ the Company, as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Act and by the rules of the Public Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undAcc

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Representations, Warranties and Agreements of the Company. and the ----------------------------------------------------------------- Guarantors. The Company ~~represents~~ and ~~warrants to~~ the Guarantors, jointly and ~~agrees with~~ severally, ---------- represent and warrant to, and agree with, the ~~Underwriter~~ several Underwriters on and as ~~follows, which representations~~ of the date hereof and ~~warranties shall be deemed to be made continuously throughout~~ the ~~term of this Agreement~~Closing Date (as defined in Section 3) that: (a) The Registration Statement ~~on Form S-11~~ 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 threatened by the Commission. (~~File No.~~ i) ~~with respect~~ The Registration Statement (other than any Rule 462(b) Registration Statement to ~~the Certificates, including the Prospectus subject to completion, has been prepared~~ be filed by the Company ~~in conformity with~~ after the ~~requirements~~ effectiveness of ~~the Securities Act~~this Agreement), ~~and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date~~when it became effective, ~~and at all times subsequent thereto until the termination of the Offering~~did not contain and, ~~the Registration Statement and Prospectus~~as amended, ~~and all amendments thereof and supplements thereto~~if applicable, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did 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, (ii) the Registration Statement (other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement) and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and (iii) the Prospectus does 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 necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading~~. When~~ , except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement is or ~~was declared effective~~ the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by ~~the Commission and at all times subsequent thereto until the termination~~ such Underwriter through you expressly for use therein. (c) Each preliminary prospectus filed as part of the ~~offering~~registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the ~~Prospectus (as amended or supplemented, if the Company shall have~~ Act complied when so filed in all material respects with the ~~Commission any amendment thereof or supplement thereto) will not or~~ Act; and did not contain ~~any~~ an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in the light of the circumstances in under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in any preliminary prospectus based upon information relating to any underwriter furnished to the Company in writing by such underwriter through you expressly for use therein. (cd) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Prospectus and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business taken as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesa whole. (e) All of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, and are owned by the Company, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature. (f) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, nonassessable and not subject to any preemptive or similar rights. (g) The Company has the authorized capitalization as set forth in the Prospectus under the caption "Capitalization." (h) Neither the Company nor any of its subsidiaries is ~~not~~ in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or in default in the performance ~~or observance~~ of any obligation, ~~agreement, covenant~~ agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any ~~contract, lease, indenture, mortgage, loan~~ other agreement, ~~joint venture or other agreement~~ indenture or instrument material to the conduct of the business of the Company and its subsidiaries, taken as a whole, to which it the Company or any of its subsidiaries is a party or by which it or any of its ~~properties are~~ subsidiaries or their respective property is bound. (fi) ~~The~~ Each of the Company and the Guarantors has ~~full~~ all requisite corporate power and authority to enter into this ~~Agreement~~ Agreement, the Indenture, the Securities and ~~perform~~ the Guarantees and to consummate the transactions contemplated ~~hereby~~hereby and thereby, and each of the Company and the Guarantors has all requisite corporate power and authority to issue and sell the Securities to be offered and sold by it hereunder. This Agreement has been duly authorized, executed and delivered by each of the Company and is the Guarantors. (j) The Indenture has been duly authorized by each of the Company and the Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement ~~on the part~~ of each of the ~~Company~~Company and the Guarantors enforceable against each of the Company and the Guarantors in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). (k) The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with ~~its~~ their terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). The Guarantees endorsed on the Notes have been duly authorized by the Guarantors and, when the Securities are executed by the Company and the Guarantees are endorsed by the Guarantors and the Securities are authenticated by the Trustee as provided in the Indenture and delivered and paid for by the Underwriters as provided herein, the Guarantees will constitute valid and legally binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). (l) The execution, delivery and performance of this ~~Agreement~~ Agreement, compliance by the Company and the Guarantors with all the provisions hereof and the consummation of the transactions ~~herein~~ contemplated hereby will not ~~result in~~ require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or ~~constitute~~ a default under~~: (i)~~ , the charter or by-laws of the Company or any ~~indenture, mortgage, deed~~ of ~~trust loan~~ its subsidiaries or any agreement, ~~bond, debenture, note, agreement~~ indenture or other ~~evidence of indebtedness, any lease, contract, joint venture or other agreement or~~ instrument to which ~~the Company~~ it or any of its subsidiaries is a party or by which it or any of its subsidiaries or their respective property is bound, or violate or conflict with any laws, administrative regulations or rulings or court decrees applicable to the Company, any of its subsidiaries or their respective property. (m) Each of this Agreement, the Indenture, the Securities and the Guarantees conforms in all material respects to the description thereof contained in the Prospectus. (n) There are no material legal or governmental proceedings pending to which the Company or any of its ~~properties may be bound; (ii) the articles of incorporation~~ subsidiaries is a party or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which ~~requirements have been satisfied. (h) Except as~~ any of their respective property is ~~otherwise expressly described in~~ the ~~Registration Statement or Prospectus~~subject, ~~there is neither pending nor~~and, to the best of the Company’s 's and the Guarantors' knowledge, ~~threatened, any action, suit, claim~~ no such proceedings are threatened or ~~proceeding against~~ contemplated. (o) There are no contracts or other documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not so described or filed as required. (p) Neither the Company or nor any of its ~~officers or~~ subsidiaries has violated any ~~of its properties, assets or rights before any court, government or governmental agency or body, domestic or~~ foreign, ~~having jurisdiction over~~ federal, state or local law or regulation relating to the ~~Company~~ protection of human health and safety, the environment or ~~over its officers~~ hazardous or ~~properties~~ toxic substances or ~~otherwise which~~ wastes, pollutants or contaminants (A) "Environmental Laws"), nor any federal or state law relating to discrimination in the hiring, promotion or pay of employees nor any applicable federal or state wages and hours laws, nor any provisions of the Employee Retirement Income Security Act or the rules and regulations promulgated thereunder, that in each case might result in any material adverse change in the business, prospects, financial condition ~~(financial~~ or ~~otherwise), earnings, operations or business~~ results of operation of the Company ~~or might materially~~ and ~~adversely affect~~ its ~~properties~~subsidiaries, ~~assets or rights, or (B) might prevent consummation of the transactions contemplated hereby~~taken as a whole. (iq) ~~The Certificates to be sold hereunder by~~ Each of the Company ~~have been duly authorized for issuance~~ and ~~sale pursuant~~ its subsidiaries has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits"), including, without limitation, under any applicable Environmental Laws, as are necessary to ~~this Agreement~~ own, lease and operate its respective properties and to conduct its business; each of the Company and its subsidiaries has fulfilled and performed all of its material obligations with respect to such permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit; and, ~~when issued~~ except as described in the Prospectus, such permits contain no restrictions that are materially burdensome to the Company or any of its subsidiaries. (r) Except as otherwise set forth in the Prospectus or such as are not material to the business, prospects, financial condition or results of operation of the Company and ~~delivered against payment therefor in accordance with~~ its subsidiaries, taken as a whole, the ~~terms~~ Company and each of ~~this Agreement~~its subsidiaries has good and marketable title, ~~will be duly and validly issued and fully paid and non-assessable and will be sold~~ free and clear of all liens, claims, encumbrances and restrictions except liens for taxes not yet due and payable, to all property and assets described in the Registration Statement as being owned by it. All leases to which the Company or any ~~pledge, lien, security interest, encumbrance, claim or equitable interest;~~ of its subsidiaries is a party are valid and binding and no ~~preemptive right~~default has occurred or is continuing thereunder that might result in any material adverse change in the business, ~~co-sale right~~prospects, ~~registration right~~financial condition or results of operation of the Company and its subsidiaries taken as a whole, ~~right of first refusal or other similar right exists with respect~~ and the Company and its subsidiaries enjoy peaceful and undisturbed possession under all such leases to which any of them is a party as lessee with such exceptions as do not materially interfere with the ~~Certificates to be sold hereunder~~ use made by the Company or ~~the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by~~ such subsidiary. (s) Each of the Company and its subsidiaries maintains reasonably adequate insurance for the ~~Trustee and~~ business in which it is ~~a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws~~engaged. (jt) Each of KPMG Peat Marwick LLP, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (collectively, ~~LLP which has expressed its opinion~~ the "Independent Public Accountants") is an independent public accountants with respect to ~~certain of~~ the Company and the Subsidiary Guarantors as required by the Securities Act. (u) The consolidated financial ~~statements included as a~~ statements, together with related schedules and notes forming part ~~(whether filed or incorporated by reference)~~ of the Registration ~~Statement, is an independent registered public accounting firm within~~ Statement and the ~~meaning of the Securities Act, the Public Company Accounting Oversight Board~~ Prospectus (~~PCAOB~~and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and ~~the Rules and Regulations. The~~ changes in financial ~~statements~~ position of the Company ~~set forth~~ and its subsidiaries on the basis stated in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates ~~and~~ or for the respective periods to which they ~~apply~~ apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the ~~supporting schedules included~~ other financial and statistical information and data set forth in the Registration Statement ~~present fairly~~ and the ~~information required to be stated therein. The selected~~ Prospectus (and ~~summary financial included~~ any amendment or supplement thereto) is, in ~~the Registration Statement (or incorporated therein by reference) present fairly the information shown therein~~ all material respects, accurately presented and ~~have been compiled~~ prepared on a basis consistent with ~~the audited~~ such financial statements ~~presented therein~~and the books and records of the Company. ~~No other~~ The pro forma financial statements ~~or schedules are required by the Securities Act or the Rules~~ and ~~Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given~~ data set forth in the Registration Statement and ~~Prospectus~~the Prospectus present fairly in all material respects the information shown therein, ~~except~~ have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma information, have been properly compiled on the pro forma basis described therein and the assumptions used in the preparation thereof are reasonable and the adjustments therein are appropriate to give effect to the transactions and circumstances referred to therein. (v) None of the Company or any of the Guarantors is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as ~~is otherwise~~ amended. (w) No holder of any security of the C ompany has any right to require registration of shares of Common Stock or any other security of the Company. (x) Each of the Company and the Guarantors has complied with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida). (y) Except as disclosed in the ~~Registration Statement or~~ Prospectus, there ~~has not been:~~are no business relationships or related party transactions required to be disclosed therein by Item 404 of Regulation S-K of the Commission. (z) There is no (i) significant unfair labor practice complaint pending against the Company or any ~~change in~~ of its subsidiaries or, to the ~~capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt~~ best knowledge of the Company; , threatened against any of them, before the National Labor Relations Board or any state or local relations board, and no significant grievance or more significant arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Company or any of its subsidiaries or, to the best knowledge of the Company, threatened against any of them, and (ii) ~~any material adverse change~~no significant strike, labor dispute, slowdown or stoppage pending against the Company or any ~~development involving a material adverse change~~of its subsidiaries or, ~~in or affecting~~ to the ~~condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition~~ best knowledge of the Company; , threatened against it or any of its subsidiaries except for such actions specified in clause (~~iii~~i) ~~any transaction entered into by the Company that is material to the Company;~~ or (ivii) ~~any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business~~ above that, singly or in the aggregate, ~~are~~ could not ~~material; or (v) any loss or damage (whether or not insured) to the property of the Company which~~ reasonably ~~could~~ be expected to have a material adverse effect on the ~~condition (financial or otherwise)~~Company and its subsidiaries, ~~earnings, operations or business of the Company~~taken as a whole. (laa) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business Each of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s 's general or specific ~~authorizations and~~ authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting ~~principles. To~~ principles and to maintain ~~accountability for assets,~~ asset accountability; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization, ; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (rbb) ~~Except as set forth in the Registration Statement and Prospectus: (i)~~ All material tax returns required to be filed by the Company and each ~~entity that owns or possesses real property~~ of its subsidiaries in ~~which the Company holds a security interest is~~ any jurisdiction have been filed, other than those filings being contested in ~~material compliance with~~ good faith, and all material ~~rules~~taxes, ~~laws~~ including withholding taxes, penalties and ~~regulations relating~~ interest, assessments, fees and other charges due pursuant to ~~the use, treatment, storage and disposal of toxic substances and protection of health~~ such returns or ~~the environment (the “Environmental Laws”) which are applicable~~ pursuant to ~~its business; (ii) the Company has~~ any assessment received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or ~~in which the Company holds a security interest has~~ any of its subsidiaries have been ~~designated as a Superfund site pursuant to the Comprehensive Response~~paid, ~~Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und~~other than those being

Appears in 1 contract

Sources: Underwriting Agreement (Oci N Corp)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The Registration Statement ~~on Form S-11 (File No~~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 threatened by the Commission. ~~) with respect to~~ The Commission has not issued any order preventing or suspending the ~~Certificates, including~~ use of the Prospectus ~~subject to completion~~or suspending the effectiveness of the Registration Statement, and no proceeding for such purpose has been ~~prepared~~ instituted or threatened by the ~~Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~Commission. (b) ~~As of~~ The Registration Statement conformed in all material respects at the Effective ~~Date~~Time and conforms in all material respects, and ~~at all times subsequent thereto until the termination of the Offering,~~ any post-effective amendment to the Registration Statement ~~and Prospectus~~filed after the date hereof will conform in all material respects on the applicable effective date, ~~and all amendments thereof and supplements thereto, will comply or complied with~~ to the ~~provisions and~~ requirements of the Securities Act and the Rules and Regulations. ~~Neither~~ The Prospectus will conform in all material respects when filed with the Commission ~~nor any state securities authority has issued any order preventing or suspending~~ pursuant to Rule 424(b) and on the ~~use~~ Delivery Date (as defined in Section 5) to the requirements of ~~any Preliminary Prospectus or requiring~~ the ~~recirculation of a Preliminary~~ Securities Act and the Rules and Regulations. The Registration Statement, at the Effective Time, and the Prospectus, ~~or issued a stop order with respect to~~ as of its date and on the ~~offering of the Certificates (if the Registration Statement has been declared effective)~~Delivery Date, ~~or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective~~ do not and ~~when any post-effective amendment thereto shall become effective, the Registration Statement~~ will not ~~or did 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~~therein (in the case of the Prospectus, in the light of the circumstances in under which they were made, ) not misleading~~. When~~ ; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Underwriter by or on behalf of any Underwriter specifically for inclusion therein, which information is ~~or was declared effective by~~ specified in Section 10(f). The conditions for the ~~Commission and~~ use of Form S-3 set forth in the General Instructions thereto, at ~~all times subsequent thereto until~~ the ~~termination~~ time of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light filing of the ~~circumstances in which they were made, not misleading~~Company’s most recent Annual Report on Form 10-K have been satisfied. (c) ~~The~~ Each of the Company and its subsidiaries (as defined in Section 17) has been duly incorporated or organized and is are validly existing as ~~a corporation~~ corporations, limited partnerships, limited liability companies or trusts, as the case may be, in good standing under the laws of ~~the State~~ their respective jurisdictions of ~~Minnesota~~formation, ~~with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is~~ are duly qualified to do business and is are in good standing as foreign corporations or other entities, in each jurisdiction in which ~~the~~ their respective ownership or lease of ~~its properties~~ property or the conduct of ~~its business~~ their respective businesses requires such ~~qualification~~ qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to ~~be qualified~~ so qualify or have such power or authority would not, singularly or in ~~good standing would~~ the aggregate, have a material adverse effect on the condition (financial or otherwise), ~~earnings~~results of operations, ~~operations~~ business or ~~business~~ prospects of the ~~Company,~~ Company and ~~no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~its subsidiaries taken as a whole (a “Material Adverse Effect”). (d) The authorized capital stock of the Company ~~has operated and is operating~~ conforms as to legal matters to the description thereof incorporated by reference in ~~material compliance with all authorizations~~the Prospectus. The Company’s options, ~~licenses, certificates, consents, permits, approvals and orders of and from all state, federal~~ warrants and other ~~governmental regulatory officials and bodies necessary~~ rights to ~~own its properties and to conduct its business as described in~~ purchase or exchange any securities for shares of the ~~Registration Statement and Prospectus, all of which are~~Company’s capital stock, to the ~~Company’s knowledge~~extent described, ~~valid~~ conform to such description thereof incorporated by reference in the Prospectus. (e) All of the issued and ~~in full force~~ outstanding shares of capital stock of the Company have been duly and ~~effect.~~ validly authorized and issued and are fully paid and non-assessable. (f) The shares of the Stock to be issued and sold by the Selling Stockholders to the Underwriter hereunder have been duly authorized and are fully paid and non-assessable. (g) The Company ~~is conducting~~ has all requisite corporate power and authority to execute, deliver and perform its ~~business in substantial compliance with all applicable laws~~obligations under this Agreement. This Agreement has been duly and validly authorized, ~~rules~~ executed and ~~regulations~~ delivered by the Company. (h) The execution, delivery and performance of this Agreement by the Company, the consummation of the ~~jurisdictions~~ transactions contemplated hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or and its subsidiaries pursuant to, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which ~~it is conducting business, and~~ the Company is ~~not~~ a party or by which the Company is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in ~~material~~ any violation of the provisions of the charter or by-laws of the Company or any ~~applicable law~~of its subsidiaries; or (iii) result in any violation of or any statute or any judgment, order, ~~rule~~decree, ~~regulation, writ, injunction, judgment~~ rule or ~~decree~~ regulation of any ~~court, government~~ court or arbitrator or governmental agency or ~~body, domestic or foreign,~~ body having jurisdiction over the Company or ~~over~~ any of its ~~properties~~subsidiaries or any of their respective properties or assets. (ei) Except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby. (j) There are no contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been waived or satisfied) to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. (k) The Company has not sold or issued any securities that would be integrated with the offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the Rules and Regulations or the interpretations thereof by the Commission. (l) There has not been any change in the stockholders’ equity or long-term debt of the Company and its subsidiaries (taken as a whole) or material adverse change, or any development involving a prospective material adverse change, in or affecting the management, condition, financial or otherwise, stockholders’ equity, results of operations, business or prospects of the Company and its subsidiaries, taken as a whole required to be disclosed or incorporated by reference in the Prospectus that has not been disclosed or incorporated by reference in the Prospectus. (m) Since the date as of which information is given in the Prospectus and except as may otherwise be described in the Prospectus (exclusive of any amendment or supplement thereto after the date hereof), the Company has not (i) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its Common Stock. (n) The historical financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved. (o) G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries, whose report appears in the Prospectus or is incorporated by reference therein and who have delivered the initial letter referred to in Section 9(h) hereof, are independent certified public accountants as required by the Securities Act and the Rules and Regulations. (p) The Company and each of its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise use, all items of real and personal property which are material to the business of the Company, free and clear of all liens, encumbrances, claims and defects and imperfections of title except such as (i) do not materially interfere with the use made and proposed to be made of such property by the Company, (ii) as disclosed or incorporated by reference in the Prospectus, or (iii) could not reasonably be expected to have a Material Adverse Effect. (q) Except as described in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any subsidiary is the subject which, singularly or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; and to the best knowledge of the Company, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (r) Except for this Agreement, which the Company intends to file on a Current Report on Form 8-K, there are no contracts or other documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference therein as required. Neither the Company nor any of its subsidiaries has knowledge that any other party to any such contract, agreement or arrangement has any intention not to render full performance as contemplated by the terms thereof, other than as could not reasonably be expected to have a Material Adverse Effect. (s) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other hand, which is required to be described in the Prospectus which is not so described or incorporated by reference in the Prospectus. (t) The Company and each of its subsidiaries have filed all federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof and have paid all taxes due thereon, except such returns for which valid extensions have been filed or which individually or in the aggregate, do not involve material amounts or where the failure to file such returns by the Company and its subsidiaries, as the case may be, would not, individually or in the aggregate, materially adversely affect the business, operations or prospects of such entity, and no tax deficiency has been determined adversely to the Company or any subsidiary, as the case may be, which has had (nor does the Company or any subsidiary have any knowledge of any tax deficiency which, if determined adversely to the Company or any subsidiary, as the case may be, could reasonably be expected to have) a Material Adverse Effect, except to the extent that the validity thereof is being contested in good faith pursuant to appropriate proceedings. (u) Neither the Company nor any of its subsidiaries is (i) in violation of its ~~articles~~ charter or by-laws, (ii) in default, and no event has occurred which, with notice or lapse of ~~incorporation~~ time or ~~bylaws or in default~~ both, would constitute such a default, in the due performance or observance of any ~~obligation, agreement~~term, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture, mortgage, deed of trust, loan ~~agreement, joint venture~~ agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject or (iii) in violation in any respect of any law, ordinance, governmental rule, regulation or court decree to which it or its ~~properties are bound~~property or assets may be subject, which, in each case, could reasonably be expected to result in a Material Adverse Effect. (fv) ~~The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by~~ Neither the Company nor any subsidiary is, and ~~is a valid and binding agreement on the part~~ as of the ~~Company, enforceable against the Company in accordance with its terms. The performance~~ Delivery Date none of ~~this Agreement and the consummation of the transactions herein contemplated~~ them will ~~not result in a breach or violation of any of the terms and provisions of, or constitute a default under:~~ be (i) ~~any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement~~ an “investment company” or ~~other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is~~ a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is company “controlled by” an ~~independent registered public accounting firm~~ investment company within the meaning of the ~~Securities~~ Investment Company Act of 1940, as amended (the “Investment Company Act~~, the Public Company Accounting Oversight Board (PCAOB~~”), and the ~~Rules~~ rules and ~~Regulations. The financial statements~~ regulations of the ~~Company set forth in~~ Commission thereunder or (ii) a “holding company” or a “subsidiary company” of a holding company or an “affiliate” thereof within the ~~Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements~~ meaning of the ~~Securities~~ Public Utility Holding Company Act ~~and fairly present the financial position and the results~~ of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement1935, as amended. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific ~~authorizations and~~ authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting ~~principles. To~~ principles and to maintain ~~accountability for assets,~~ asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization, ; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (rw) ~~Except~~ The Company has established and maintains disclosure controls and procedures (as ~~set forth~~ such term is defined in Rule 13a-14 under the ~~Registration Statement~~ Exchange Act), which (i) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s principal executive officer and ~~Prospectus:~~its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated for effectiveness as of a date within 90 days prior to the date of the Company’s most recent annual or quarterly report; and (iii) are effective in all material respects to perform the functions for which they were established. (x) Since the date of the most recent balance sheet of the Company and its consolidated subsidiaries reviewed or audited by G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and the audit committee of the board of directors of the Company, (i) the Company has not been advised of (A) any significant deficiency in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize and ~~each entity~~ report financial data or any material weaknesses in internal controls, and (B) any fraud, whether or not material, that ~~owns~~ involves management or ~~possesses real property~~ other employees who have a significant role in ~~which~~ the ~~Company holds a security interest is in material compliance with all material rules~~Company’s internal controls, ~~laws~~ and ~~regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business;~~ (ii) since that date, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses. (y) The Company has not distributed and, prior to the later to occur of the Delivery Date and completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than the Prospectus. (z) The Company has not taken and will not take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company ~~has received no notice from any governmental authority~~ to facilitate the sale or ~~third party~~ resale of ~~an asserted claim under Environmental Laws, which claim is required to be disclosed in~~ the ~~Registration Statement and~~ shares of the ~~Prospectus;~~Stock. (~~iii~~aa) ~~the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and~~The Stock has been approved for listing in The NASDAQ National Market. (ivbb) ~~no property which is owned~~The Company and each of its subsidiaries have all material licenses, ~~leased~~ certificates, authorizations and permits issued by, and have made all declarations and filings with, the appropriate federal, state or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undforeign regulatory a

Appears in 1 contract

Sources: Underwriting Agreement (Rent a Center Inc De)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to to, and agrees ~~with the~~ with, Underwriter ~~as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) ~~The Registration Statement~~ A registration statement on Form ~~S-11~~ S-1 (File No. ) ________), with respect to the ~~Certificates~~Shares, including ~~the Prospectus~~ a prospectus subject to completion, has been ~~prepared~~ filed by the Company ~~in conformity~~ with the ~~requirements of~~ Securities and Exchange Commission (the “Commission”) under the Securities ~~Act~~Act of 1933, as amended (the “Act “), and one or more amendments to that registration statement may have been so filed. Copies of such registration statement and of each amendment heretofore filed by the ~~Rules and Regulations of the Commission thereunder and has been filed~~ Company with the Commission have been delivered to Underwriter. After the execution of this agreement, the Company will file with the Commission either (i) if the registration statement, as it may have been amended, has been declared by the Commission to be effective under the ~~Securities~~ Act, a DRAFT prospectus in the form most recently included in that registration statement (or, if an amendment thereto shall have been filed, in such amendment), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act and as have been provided to and approved by Underwriter prior to the execution of this agreement, or (ii) if that registration statement, as it may have been amended, has not been declared by the Commission to be effective under the Act, an amendment to that registration statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by Underwriter prior to the execution of this agreement. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the The Commission ~~nor any state securities authority~~ has not issued any order preventing or suspending the use of any Preliminary Prospectus. When each Preliminary Prospectus ~~or requiring~~ and each amendment and each supplement thereto was filed with the ~~recirculation of a Preliminary Prospectus~~Commission it (i) contained all statements required to be stated therein, ~~or issued a stop order~~ in accordance with, and complied with ~~respect to~~ the ~~offering~~ requirements of, the Act and the rules and regulations of the ~~Certificates~~ Commission thereunder and (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or ii) did not ~~contain~~ include any untrue statement of a material fact or omit to state a any material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. When the Registration Statement was or is ~~or was~~ declared effective by (“Effective Date”), it (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply with the requirements of, the Act and the rules and regulations of the Commission thereunder and ~~at all times subsequent thereto until the termination of the offering, the Prospectus~~ (~~as amended~~ ii) did not or ~~supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto)~~ will not ~~or did not contain~~ include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein not misleading. When the Prospectus and each amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required so to be filed, when the Registration Statement containing such Prospectus or amendment or supplement thereto was or is declared effective) and on each Closing Date (as such term is hereinafter defined), the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply with the requirements of, the Act and the rules and regulations of the Commission thereunder and (ii) did not or will not include any statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in under which they were made, not misleading. The foregoing provisions of this paragraph (b) do not apply to statements or omissions made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by Underwriter specifically for use therein. (c) Since the respective dates as of which information is given in the Registration Statement and in the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, earnings, business or prospects of the Company considered as a whole, whether or not arising in the ordinary course of business, and (ii) there have been no material transactions entered into by the Company other than those in the ordinary course of business. (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Minnesota,~~ Tennessee with ~~full~~ power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and ~~Prospectus. The Company~~ DRAFT Prospectus and is duly qualified to do business as a foreign corporation and is in good standing in ~~each jurisdiction~~ all other jurisdictions in which the ~~ownership~~ nature of its business or ~~lease~~ the character or location of its properties ~~or the conduct of its business~~ requires such ~~qualification and in which the~~ qualification, except where failure to ~~be qualified~~ so qualify will not materially affect the business, properties or ~~in good standing would have a material adverse effect on the~~ financial condition ~~(financial or otherwise), earnings, operations or business~~ of the Company~~, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d)~~ . The Company has ~~operated and is operating~~ no directly or indirectly held subsidiary except as disclosed in ~~material compliance with~~ the Registration Statement. The Company has all power, authority, authorizations, approvals, consents, orders, licenses, ~~certificates~~certificates and permits needed to enter into, ~~consents, permits, approvals~~ deliver and ~~orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties~~ perform this agreement and to ~~conduct its business as described in~~ issue and sell the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesShares. (e) The Company is not (i) in violation of its ~~articles~~ Articles of ~~incorporation~~ Incorporation or ~~bylaws~~ bylaws, as the case may be, or other organizational documents, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any~~ material contract~~, lease~~, indenture, mortgage, loan agreement, ~~joint venture~~ note, lease or other agreement or instrument to which it is a party or by which it or its properties ~~are~~ may be bound. , except in the case of (fii) ~~The~~ above, where such default would not, individually or in the aggregate, result in a material adverse change in (A) the condition, financial or otherwise, earnings, business or prospects of the Company ~~has full requisite power and authority~~ taken as a whole, or (B) the ability of the Company to enter ~~into this Agreement~~ into, perform and ~~perform~~ effect the transactions contemplated hereby~~. This Agreement has been duly authorized~~; no consent, ~~executed~~ approval, authorization, order, registration, filing or qualification of or with any court or governmental authority or agency is required for the issue and ~~delivered~~ sale of the Shares as contemplated herein or the consummation by the Company ~~and is a valid and binding agreement on the part~~ of the ~~Company~~transactions contemplated by this agreement, ~~enforceable against~~ except such as may be required under the ~~Company~~ Act and the Rules and Regulations or state securities or Blue Sky laws in ~~accordance~~ connection with ~~its terms. The performance~~ the distribution of the Shares by Underwriter; and the issue and sale of the Shares as contemplated herein, the execution and delivery of this ~~Agreement~~ agreement and the consummation of the transactions ~~herein~~ contemplated hereby will not ~~result in~~ conflict with or constitute a breach ~~or violation of any of the terms and provisions~~ of, or ~~constitute a~~ default under~~: (i)~~ , or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, ~~deed of trust~~ loan agreement, ~~bond, debenture,~~ note, ~~agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company ~~or its properties may be bound; (ii) the articles of incorporation or bylaws~~ is subject, nor will any such action result in any violation of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company provisions of the ~~transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act,~~ charter or ~~under state or other securities or Blue Sky laws, all~~ code of ~~which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ regulation of ~~the Company’s knowledge, threatened, any action, suit, claim or proceeding against~~ the Company or any ~~of its officers~~ law, administrative regulation or ~~any of its properties, assets~~ administrative or ~~rights before any court, government~~ court decree or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates order applicable to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (lf) ~~Except as is otherwise expressly disclosed in~~ The Company possesses all certificates, authorities or permits issued by the ~~Registration Statement~~ appropriate state, federal or ~~Prospectus: (i)~~ foreign regulatory agencies or bodies necessary to conduct the ~~Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned~~ business now operated by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice ofof proceedings relating to the revocation or modification of any such certificate, ~~and has no knowledge of~~authority or permit which, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, ~~might have a material adverse effect on~~ would materially and adversely affect the ~~condition (~~condition, financial or otherwise), earnings, ~~operations~~business or prospects of the Company considered as a whole. (g) Except as set forth in the Prospectus, as amended or supplemented, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, contemplated or threatened against the Company, which might result in any material adverse change in the condition, financial or otherwise, earnings, business or ~~business~~ prospects of the Company considered as a whole, or might materially and adversely affect the properties or assets thereof or might adversely affect the lawful issuance and offering of the Shares in the manner contemplated by the Prospectus; and DRAFT there are no material contracts or other documents which are required to be described in the Registration Statement or the Prospectus or filed as exhibits to the Registration Statement by the Act or by the Rules and Regulations which have not been so described or have not been so filed. (h) The Company has good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by it, in each case free and clear of all liens, encumbrances and defects except (i) such as are referred to in the Prospectus, or (ii) such as do not materially and adversely affect the value of such property to the Company, and do not materially interfere with the use made and proposed to be made of such property by the Company; and any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made by the Company. (pi) The Company has ~~not taken~~ an authorized capitalization as set forth in the Prospectus and the Shares and the Warrant Securities have been duly authorized and, when issued and delivered in accordance with the terms of this agreement, will be validly issued, fully paid and non-assessable and will conform to the description of them contained in the Prospectus. The issuance and sale of the Shares is not subject to pre-emptive or other similar rights or to restrictions on transfer (other than those imposed by the Act, the Rules and Regulations or state securities or Blue Sky laws). There are no outstanding options, warrants or other rights calling for the issuance of, and no binding commitment to issue, any share of stock of the Company or any security convertible into or exchangeable for stock of the Company, except for stock options and warrants described in the Registration Statement (the “Stock Options”). The Common Stock, the Preferred Stock, the Shares and the Stock Options conform to all statements in relation thereto contained in the Registration Statement and the Prospectus. (j) This agreement has been duly authorized, executed and delivered by the Company and is the legal, valid and binding agreement and obligation of the Company, except (i) as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors rights or by general equity principles, including requirements of reasonableness and good faith in the exercise of rights and remedies, whether applied by a court of equity or a court of law in an action at law or in equity, or by the discretionary nature of specific performance, injunctive relief, and other equitable remedies, including the appointment of a receiver and (ii) with respect to provisions relating to indemnification and contribution, to the extent they are held by a court of competent jurisdiction to be void or unenforceable as against public policy or limited by applicable laws or the policies embodied in them. (k) Neither the Company nor any of its officers, directors or holders of five percent or more of any class of its capital stock or any of their respective affiliates is a member of, or is associated or affiliated with a member of, the Financial Industry Regulatory Authority, Inc. (“FINRA”), except as described in the Registration Statement and the Prospectus. (l) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such DRAFT person or to require the Company to include such securities under the Registration Statement, except as described in the Registration Statement. (m) The financial statements of the Company included in the Registration Statement and the Prospectus (and, if the Prospectus is not in existence, the most recent Preliminary Prospectus) fairly present the financial position of the Company as of the dates indicated and the results of operations of the Company for the periods specified. Such financial statements have been prepared in accordance with accounting principles generally accepted in effect in the United States of America, consistently applied, except to the extent that certain footnote disclosures regarding unaudited interim periods may have been omitted in accordance with the applicable rules of the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The financial data set forth under the caption “Summary Financial Information” in the Prospectus (and, if the Prospectus is not in existence, the most recent Preliminary Prospectus) fairly present, on the basis stated in the Prospectus (or such Preliminary Prospectus), the information included therein. (n) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP has audited the financial statements of the Company as of June 30, 2011, and they have delivered their report with respect to the financial statements included in the Registration Statement and the Prospectus (and, if the Prospectus is not in existence, the most recent Preliminary Prospectus), and are independent public accountants with respect to the Company as required by the Act and the applicable rules and regulations thereunder. (o) Neither the Company nor, to the Company's knowledge, any director, officer, agent, employee or other person associated with the Company, acting on behalf of the Company, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (p) Neither the Company nor any of its affiliates has taken, nor will they take, directly or indirectly, any action ~~(and does not know of any action by its directors~~designed to cause or result in, ~~officers, members~~ or ~~others)~~ which has constituted ~~or is designed to,~~ or which might reasonably be expected toto constitute, ~~cause or result in~~ the stabilization or ~~manipulation, as defined in the Exchange Act or otherwise,~~ manipulation of the price of ~~any security of~~ the ~~Company~~ Shares in order to facilitate the sale or resale of ~~the Certificates. The Company has not distributed and will not distribute prior to the completion~~ any of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted Shares as contemplated by the ~~Securities Act~~Rules and Regulations. (q) ~~The~~ No transaction has occurred between or among the Company ~~maintains a system~~ and any of ~~internal accounting controls sufficient~~ its officers, directors, organizers or any affiliate or affiliates of any such officer, director, organizer or shareholder, that is required to ~~provide reasonable assurance that transactions are executed~~ be described in ~~accordance with management’s general or specific authorizations~~ and ~~transactions are recorded as necessary to permit preparation of financial statements~~ is not described in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the ~~recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences~~Prospectus. (r) ~~Except~~ The Company is not and will not, upon completion of the Offering, be an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as ~~set forth in the Registration Statement and Prospectus:~~amended. (is) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business;Intentionally left blank. DRAFT (iit) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seqIntentionally left blank.~~), or otherwise designated as a contaminated site und~~

Appears in 1 contract

Sources: Underwriting Agreement (American Realty Funds Corp)

Representations, Warranties and Agreements of the Company. ~~The~~ As of the date hereof, the Company represents and warrants to to, and agrees ~~with~~ with, the Underwriter ~~as follows, which representations~~ and ~~warranties shall be deemed to be made continuously throughout~~ the ~~term of this Agreement~~Selling Stockholders that: (a) The Registration Statement ~~on Form S-11~~ has heretofore become effective under the Act; the Registration Statement constitutes an “automatic shelf registration statement” (~~File No. ) with respect~~ as defined in Rule 405 under the Act), and, as of the determination date applicable to the ~~Certificates~~Registration Statement (and any amendment thereof) and the offering contemplated hereby, ~~including the Prospectus subject to completion, has been prepared by~~ the Company is a “well-known seasoned issuer” as defined in ~~conformity with~~ Rule 405 under the ~~requirements of the Securities~~ Act~~, and the Rules and Regulations~~ ; no stop order of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of ~~any Preliminary~~ the Basic Prospectus, the Prospectus Supplement, the Prospectus or ~~requiring the recirculation of a Preliminary~~ any Permitted Free Writing Prospectus, or ~~issued a stop order with respect to~~ the ~~offering~~ effectiveness of the ~~Certificates (if the~~ Registration ~~Statement~~ Statement, has been ~~declared effective)~~issued, or and no proceedings for such purpose have been instituted or, to the Company’s ~~knowledge~~knowledge after due inquiry, are threatened by the ~~institution of~~Commission. (b) The Disclosure Package, ~~proceedings for~~ as of the Applicable Time did not, and as of the time of purchase will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of ~~such purposes. When~~ the circumstances under which they were made, not misleading; each of the Prospectus Supplement and the Prospectus, as amended and supplemented, as of the date thereof and as of the time of purchase, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration ~~Statement shall become effective and when any post-effective amendment thereto shall become effective~~Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus; and each Permitted Free Writing Prospectus, together with the Prospectus, as of the date thereof did not, and as of the time of purchase will not, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein. No statement of a material fact included in the Prospectus shall have been omitted from the Disclosure Package and no statement of a material fact included in the Disclosure Package shall be omitted from the Prospectus. (c) The Registration Statement and the Basic Prospectus conform, and the Prospectus Supplement, the Prospectus and any amendments to the Registration Statement, the Basic Prospectus or the Prospectus will conform, in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder; the Registration Statement, as of the Effective Time, and as amended or supplemented as of the time of the filing of any amendment or supplement thereto, did not and will not ~~or did 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~~therein not misleading; the Basic Prospectus, ~~in light~~ as of the ~~circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ time of the ~~offering~~filing thereof, ~~the Prospectus (~~and as amended or ~~supplemented, if~~ supplemented as of the ~~Company shall have filed with~~ time of the ~~Commission~~ filing of any amendment ~~thereof~~ or supplement thereto) , did not and will not ~~or did not~~ contain ~~any~~ an untrue statement of a material fact or omit to state a any material fact ~~required to be stated therein or~~ necessary in order to make the ~~statements~~ statement therein, in the light of the circumstances in under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein. (d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by the Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) ~~The~~ and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the Basic Prospectus, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company nor the Underwriter is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; and the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares contemplated by the Registration Statement. (e) Each of the Company and its subsidiaries has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the ~~State of Minnesota, with full~~ corporate power and authority to carry on its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to own, lease and operate its ~~properties~~ properties, and ~~conduct its business as described in the Registration Statement and Prospectus. The Company~~ each is duly qualified ~~to do business~~ and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the ~~ownership or lease of its properties or the conduct~~ nature of its business or its ownership or leasing of property requires such ~~qualification and in which~~ qualification, except where the failure to be so qualified ~~or in good standing~~ would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (~~financial~~ a “Material Adverse Effect”). (f) All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or ~~otherwise~~similar rights. (g) The entities listed on Schedule D hereto are the only subsidiaries, direct or indirect, of the Company. All of the outstanding shares of capital stock of each of the subsidiaries of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and are owned by the Company, directly or indirectly through one or more subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a “Lien”), ~~earnings~~except for (i) Liens described in the Registration Statement, ~~operations or business~~ the Basic Prospectus, the Prospectus and any Permitted Free Writing Prospectus and (ii) such other Liens which could not reasonably be expected to have a Material Adverse Effect. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The Shares to be sold by the Selling Stockholders have been duly and validly authorized and issued and are fully paid, non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights. The capital stock of the Company, including the Shares, will conform in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Basic Prospectus, the Prospectus and ~~no proceeding has been instituted in~~ any ~~such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification~~Permitted Free Writing Prospectus. (dj) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and Neither the Company nor any of its subsidiaries is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (ex) ~~The Company is not~~ in violation of its ~~articles of incorporation~~ respective charter or ~~bylaws~~ by-laws or (y) in default in the performance ~~or observance~~ of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease,~~ indenture~~, mortgage~~, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, ~~deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture~~ lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its ~~properties may~~ subsidiaries or their respective property is bound, which violation or default, in the case of this clause (y), could reasonably be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesexpected to have a Material Adverse Effect. (gk) No The execution, delivery and performance of this Agreement by the Company, compliance by the Company with all provisions hereof, the sale of the Shares to be sold by the Selling Stockholders pursuant hereto and the consummation of the transactions contemplated hereby will not (i) require any consent, approval, authorization or other order of of, or qualification ~~with~~ with, any ~~court,~~ court or governmental body or agency ~~or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company~~ (other than registration of the ~~transactions herein contemplated~~Shares under the Act, which has been or will be effected, and except such as may be required under the ~~Securities Act, the Exchange Act, or under state or other~~ securities or Blue Sky ~~laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best~~ laws of the ~~Company’s knowledge~~various states or under the rules and regulations of the National Association of Securities Dealers, ~~threatened~~Inc. (“NASD”)), (ii) conflict with or constitute a breach of any ~~action~~of the terms or provisions of, ~~suit~~or a default under, ~~claim~~ the charter or ~~proceeding against~~ by-laws of the Company or any of its ~~officers~~ subsidiaries, (iii) conflict with or constitute a breach of any of the terms or provisions of, or a default under any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any of its ~~properties, assets~~ subsidiaries is a party or ~~rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over~~ by which the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of ~~the Certificates to be sold hereunder by the Company~~ its subsidiaries or ~~the issuance and sale thereof. The Indenture has been duly authorized~~their respective property is bound, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which ~~has expressed its opinion with respect to certain of the financial statements included as a part (whether filed~~ violation or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which default could reasonably ~~could~~ be expected to have a ~~material adverse effect on~~ Material Adverse Effect, (iv) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the ~~condition~~ Company, any of its subsidiaries or their respective property, which violation or conflict could reasonably be expected to have a Material Adverse Effect, (~~financial~~ v) result in the imposition or ~~otherwise)~~creation of (or the obligation to create or impose) a Lien under, ~~earnings~~any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound which Lien could reasonably be expected to have a Material Adverse Effect, ~~operations~~ or ~~business~~ (vi) result in the termination, suspension or revocation of any Authorization (as defined below) of the ~~Company~~Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization which termination, suspension or revocation could reasonably be expected to have a Material Adverse Effect. (l) Except as ~~is otherwise expressly disclosed~~ set forth in the Registration Statement (excluding the exhibits thereto), the Basic Prospectus and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or ~~Prospectus:~~the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise. (im) Except as set forth in the Registration Statement, the Basic Prospectus and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company ~~has good and marketable title~~ or any of its subsidiaries is or could be a party or to ~~all~~ which any of their respective property is or could be subject, which might result, singly or in the ~~property~~aggregate, ~~real and personal~~in a Material Adverse Effect. All legal or governmental proceedings, ~~and assets~~ affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements an exhibit to ~~which the Company is a party described in~~ the Registration Statement ~~and Prospectus are valid agreements, enforceable by the Company except~~ have been so described or filed as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performancerequired. Except as set forth in the Registration Statement (excluding the exhibits thereto), the Basic Prospectus and the Prospectus, neither the Company ~~owns~~ nor any of its subsidiaries has violated any foreign, federal, state or ~~leases all such properties as are necessary~~ local law or regulation relating to ~~its operations as now conducted.~~ the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (~~m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856~~ “Environmental Laws”), or any provisions of the ~~Internal Revenue Code and~~Foreign Corrupt Practices Act of 1977, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Companyamended, and ~~all tax liabilities are adequately provided~~ the rules and regulations thereunder, except for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights thatsuch violations which, singly or in the aggregate, ~~if the subject of an unfavorable decision, ruling or finding, might~~ would not have a ~~material adverse effect~~ Material Adverse Effect. (n) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the ~~condition~~ aggregate, have a Material Adverse Effect. (~~financial or otherwise), earnings, operations, business or business prospects~~ o) Each of the ~~Company~~Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an “Authorization”) of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (p) The ~~Company has not taken~~ accountants, PricewaterhouseCoopers LLP, who have certified the consolidated financial statements and ~~will not take~~supporting schedules as of December 31, ~~directly or indirectly~~2005 and December 31, ~~any action (~~2004 and ~~does not know~~ for each of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined the three years in the ~~Exchange Act~~ period ended December 31, 2005, included or ~~otherwise~~incorporated by reference in the Registration Statement, of the ~~price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed~~ Basic Prospectus and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken independent registered public accountants with respect to ~~any differences. (r) Except~~ the Company, as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Act and by the rules of the Public Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undAcc

Appears in 1 contract

Sources: Underwriting Agreement (Allied Waste Industries Inc)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the ~~Underwriter~~ Agent as follows, which representations and warranties shall be deemed to be made continuously ~~throughout~~ from and as of the ~~term of~~ date hereof until this ~~Agreement:~~Offering is terminated and all then-outstanding Notes have been paid in full or such earlier date that this Agreement has been terminated. (a) The Registration ~~Statement on Form S-11 (File No. ) with respect to the Certificates~~Statement, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities ~~Act,~~ Act and the Rules and Regulations ~~of the Commission thereunder~~ and has been filed with the Commission under the Securities Act. Copies of the Registration Statement and any amendments thereto, as filed with the Commission, have been delivered by the Company to the Agent. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, including each document included therein by reference, and all amendments thereof and supplements thereto, will comply with or have complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the ~~offering of the Certificates~~ Offering (if the Registration Statement has been declared effective), or instituted or, to the Company’s 's knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the ~~offering~~Offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. None of the representations and warranties in this Section shall apply to any statements in, or omissions from the Agent Disclosure Statements (as defined in Section 5.01(f) below) in the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Minnesota~~Delaware, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and, to the best of the Company' s knowledge, ~~and~~ no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the best of the Company’s 's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its ~~articles~~ certificate of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any ~~bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument~~ Material Agreement to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any ~~indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument~~ Material Agreement to which the Company is a party or by which the Company or its properties may be bound; (ii) the ~~articles~~ certificate of incorporation or bylaws of the Company: , or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or ~~Blue Sky~~ blue sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in or incorporated by reference into the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s 's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which if successful would be likely to (A) ~~might~~ result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) ~~might~~ prevent consummation of the transactions contemplated hereby. (i) All outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and the authorized and outstanding capital stock of the Company conforms in all material respects with the statements relating thereto contained in the Registration Statement and the Prospectus. The ~~Certificates~~ Notes to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to the Indenture and this Agreement and, when issued and delivered against payment therefor in accordance with the terms of the Indenture and this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders exists with respect to any of the ~~Certificates~~ Notes to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undsale

Appears in 1 contract

Sources: Distribution and Management Agreement (Onyx Acceptance Corp)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with~~ with, the ~~Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~Underwriters that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion,~~ has been ~~prepared~~ declared effective by ~~the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with~~ the Commission under the Securities Act~~. (b) As~~ . The Company has complied to the Commission's satisfaction with all requests of the ~~Effective Date, and at all times subsequent thereto until~~ Commission for additional or supplemental information. No stop order suspending the ~~termination~~ effectiveness of ~~the Offering,~~ the Registration Statement is in effect and ~~Prospectus~~no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. Each Preliminary Prospectus and the Prospectus when filed complied in all ~~amendments thereof and supplements thereto, will comply or complied~~ material respects with ~~the provisions and requirements of~~ the Securities Act and the ~~Rules and Regulations. Neither~~ Trust Indenture Act of 1939, as amended (the ~~Commission nor any state securities authority has issued any order preventing or suspending~~ "TRUST INDENTURE ACT"), and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the ~~use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus~~Securities Act), ~~or issued a stop order with respect~~ was identical to the ~~offering~~ copy thereof delivered to the Underwriters for use in connection with the offer and sale of the ~~Certificates (if the~~ Designated Securities. The Registration Statement ~~has been declared effective)~~complies, ~~or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective~~ and ~~when~~ any post-effective amendment thereto ~~shall become effective~~will comply, in all material respects with the Securities Act and the Trust Indenture Act, and the Registration Statement as amended and supplemented by the Prospectus, and any post-effective amendment thereto do not and will ~~not~~ not, as of the applicable effective date as to the Registration Statement, or ~~did not~~ any post-effective amendment thereto, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading. ~~When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering~~The Prospectus, ~~the Prospectus (~~as amended or supplemented, if as of its date, and any further supplements to the ~~Company shall have filed with~~ Prospectus, as of the ~~Commission~~ applicable filing date as to any ~~amendment thereof or supplement thereto)~~ such supplement, do not and will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any post-effective amendment thereto or the Prospectus or any supplement thereto made in reliance upon and in conformity with written information furnished to the Company in writing by or on behalf of the Representatives specifically for inclusion therein, which information consists solely of the information set forth in the letter referred to in Section 6(e), or to information which shall constitute the Statement of Eligibility under the Trust Indenture Act (Form T-1) of the Trustee under the Indenture. There are no contracts or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. (b) The Company has delivered to each Representative one photocopy of a complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and Preliminary Prospectuses and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters. (c) The Company has not distributed and will not distribute, prior to the later of the Optional Delivery Date (as defined below) and the completion of the Underwriters' distribution of the Units, any offering material in connection with the offering and sale of the Units other than a Preliminary Prospectus, the Prospectus as the Registration Statement. (d) Each of the Company and each of ABS Finance Company, Inc., Acme Markets Inc., Jewel Food Stores, Inc., American Drug Stores, Inc., Lucky Stores, Inc. (NV), Lucky Stores, Inc. (FL), Lucky Stores, Inc. (DE) and JS USA Holdings Inc. (collectively, the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Minnesota, with full~~ its incorporation and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the ~~Registration Statement~~ Prospectus. Each of the Significant Subsidiaries is a "significant subsidiary" of the Company as defined in Rule 1-02 of Regulation S-X under the Securities Act. Except for the Significant Subsidiaries (and ~~Prospectus~~except for the subsidiaries of JS USA Holdings Inc., ~~all~~ with respect to which no representation or warranty is made hereby), none of ~~which are, to~~ the Company~~’s knowledge, valid and in full force and effect. The Company~~ 's subsidiaries is ~~conducting its business in substantial compliance with all applicable laws, rules and regulations~~ a "significant subsidiary" of the ~~jurisdictions~~ Company as defined in ~~which it is conducting business, and~~ Rule 1-02 of Regulation S-X under the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its propertiesSecurities Act. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has ~~full~~ all requisite corporate power and authority to ~~enter into~~ execute and deliver this Agreement and perform ~~the transactions contemplated hereby. This~~ its obligations hereunder; this Agreement has been duly authorized, executed and delivered by the Company. (f) The Company has all requisite corporate power and is authority to execute and deliver each of the Unit Agreements and perform its obligations thereunder; each of the Unit Agreements has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the occurrence of a Termination Event (as defined in the Purchase Contract), Title 11 of the United States Code (the "BANKRUPTCY CODE") should not substantively limit the provisions of the Purchase Agreement or the Pledge Agreement that require termination of the Purchase Contracts and release of the Collateral Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities (as defined in the Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), as applicable, and the transfer of such securities to the Purchase Contract Agent, for the benefit of the Holders of the Units (as defined in the Prospectus); provided further that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and remedies contained in Section 5.06 of the Purchase Agreement and Section 5.04 of the Pledge Agreement. Each of the Unit Agreements conforms in all material respects to the description thereof contained in the Prospectus. (g) The Company has all requisite corporate power and authority to execute and deliver the Remarketing Agreement and perform its obligations thereunder; the Remarketing Agreement has been duly authorized and, on the ~~part~~ First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and except as any rights to indemnification, contribution or exculpation thereunder may be limited by principles of public policy, statutory duties and applicable securities laws. The Remarketing Agreement conforms in all material respects to the description thereof contained in the Prospectus. (h) The Company has all requisite corporate power and authority to execute and deliver the Supplemental Indenture and perform its obligations thereunder; the Supplemental Indenture has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company and qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery of the Supplemental Indenture by the Trustee, the Supplemental Indenture will constitute a legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The ~~performance of this Agreement and~~ Supplemental Indenture conforms in all material respects to the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described description thereof contained in the ~~Registration Statement or~~ Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The ~~Certificates to be sold hereunder by the Company~~ Senior Notes have been duly authorized ~~for issuance and sale pursuant to this Agreement~~ and, on the First Delivery Date, will have been duly executed by the Company, and, when ~~issued~~ the Senior Notes are authenticated by the Trustee in accordance with the Indenture and delivered against payment therefor in accordance with ~~the terms of~~ this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a constitute legally valid and binding ~~agreement~~ obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Senior Notes will conform in all material respects to the description thereof contained in the Prospectus. (j) The Designated Securities have been duly authorized and, on the ~~part~~ First Delivery Date, will have been duly executed by the Company, and, when the Designated Securities are authenticated by the Purchase Contract Agent in accordance with the Purchase Agreement and delivered against payment therefor in accordance with this Agreement, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with ~~its~~ their terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as ~~is otherwise disclosed in~~ the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement enforceability thereof may be limited by ~~applicable~~ bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and other similar laws relating to or affecting creditors’ ' rights ~~generally or by judicial~~ generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the ~~right~~ occurrence of ~~specific performance; and~~ a Termination Event (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the ~~Exchange Act or otherwise~~Purchase Contract), the Bankruptcy Code should not substantively limit the provisions of the ~~price of any security~~ Purchase Agreement or the Pledge Agreement that require termination of the ~~Company to facilitate the sale or resale~~ Purchase Contracts and release of the ~~Certificates. The Company has not distributed and will not distribute prior to~~ Collateral Agent's security interest in (1) the ~~completion of~~ Senior Notes, (2) the ~~distribution of~~ Treasury Securities (as defined in the ~~Certificates~~Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorizationapplicable, and the ~~recorded accountability~~ transfer of such securities to the Purchase Contract Agent, for ~~assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.~~ the benefit of the Holders of the Units (~~r) Except~~ as ~~set forth~~ defined in the ~~Registration Statement and~~ Prospectus~~: (i)~~ ); provided further that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and ~~each entity that owns or possesses real property~~ remedies contained in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site undSection 5.06 of

Appears in 1 contract

Sources: Underwriting Agreement (Albertsons Inc /De/)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to ~~and agrees with~~ the ~~Underwriter~~ Placement Agent as follows~~, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~: (a) The ~~Registration Statement on Form S-11 (File No. ) with respect to the Certificates, including the Prospectus subject to completion, has~~ Offering Documents have been prepared by the Company and copies of such Offering Documents and any amendments thereto have been delivered by the Company to the Placement Agent for distribution to potential Purchasers. The Offering Documents will not be amended or supplemented and no amendment or supplement thereto will be made without your prior consent unless necessary to conform to the representations and warranties contained in ~~conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~this Agreement. (b) ~~As of the Effective Date, and at~~ The Offering Documents conform in all ~~times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied~~ material respects with the ~~provisions and~~ requirements of Section 4(2) of the Securities Act of 1933, as amended and with the ~~Rules~~ requirements of all other published rules and ~~Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use~~ regulations (including Section 401(f) of ~~any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering~~ Regulation S-K) of the ~~Certificates (if~~ SEC currently in effect relating to "private offerings" of the ~~Registration Statement has been declared effective), or instituted or, to~~ type contemplated by the Company~~’s knowledge~~. The Offering Documents, ~~threatened~~ on the ~~institution of~~date of their issuance will be and at the Offering Closing Date will be, ~~proceedings for any of such purposes. When the Registration Statement shall become effective~~ accurate in all material respects and ~~when any post-effective amendment thereto shall become effective, the Registration Statement~~ will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a any material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances ~~in which they were made~~existing at such dates, not ~~misleading. When the Registration Statement is or was declared effective by the Commission~~ misleading and at will be, as of each Closing Date accurate in all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) material respects and will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a any material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances ~~in which they were made~~existing at each Closing Date, not misleading. (c) The Company ~~has been~~ is, and at each Closing Date will be, a corporation duly ~~incorporated and is~~ organized, validly existing ~~as a corporation~~ and in good standing under the laws of Delaware. The Company has, and at the ~~State of Minnesota~~Closing will have, ~~with~~ full power and authority to ~~own~~conduct all the activities conducted by it, ~~lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified~~ to ~~do business and is in good standing in each jurisdiction in which the ownership~~ own or lease ~~of its properties~~ all the assets owned or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties leased by it and to conduct its business as described in the ~~Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect~~Offering Documents. The Company ~~is conducting its~~ is, and at each Closing Date will be, duly licensed or qualified to do business and in ~~substantial compliance with~~ good standing as a foreign corporation in all ~~applicable laws, rules and regulations of the~~ jurisdictions in which the nature of the activities conducted by it ~~is conducting business~~or the character of the assets owned or leased by it makes such licensing or qualification necessary and where the failure to be so licensed or qualified could have a Material Adverse Effect (as hereinafter defined). The Company has no material subsidiaries. Complete and correct copies of the certificate of incorporation and of the by-laws of the Company and all amendments thereto have been delivered to the Placement Agent. (d) The outstanding shares of Common Stock have been, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over Shares to be issued and sold by the Company ~~or over its properties. (e) The Company is not in violation~~ upon such issuance will be, when paid for by the Purchasers as provided herein and the Warrant Shares, upon issuance will be, when paid for pursuant to the terms of ~~its articles of incorporation or bylaws or in default in~~ the ~~performance or observance of any obligation~~Placement Agent Warrants, ~~agreement~~respectively, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, ~~executed~~ validly issued, fully paid and ~~delivered by the Company~~ nonassessable and ~~is a valid and binding agreement on the part~~ will not be subject to any preemptive or similar right. The description of the ~~Company~~Common Stock in the Offering Documents will be, ~~enforceable against the Company~~ and at each Closing Date will be, complete and accurate in ~~accordance with its terms~~all material respects. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation All prior sales by the Company of the ~~transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act,~~ Company's securities have been made in compliance with or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, an exemption from registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of under the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performancestate securities laws. Except as set forth in the ~~Registration Statement and Prospectus~~Offering Documents, the Company ~~owns~~ does not have outstanding, and at each Closing Date will not have outstanding, any options to purchase, or ~~leases all~~ any rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell any of shares of Common Stock or any such ~~properties as are necessary to its operations as now conducted~~warrants, convertible securities or obligations. (me) The ~~Company was organized and has been operated to qualify as a real estate investment trust under Section 856~~ financial statements of the ~~Internal Revenue Code and, to~~ Company (including the ~~knowledge~~ related notes and supporting schedules) included in the Offering Documents fairly present the financial condition of the Company, ~~no event has occurred that would cause~~ at the ~~Company~~ dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles as applied in the United States on a consistent basis throughout the periods involved, except as otherwise stated therein and with respect to ~~fail to so qualify~~interim statements except for normal year-end adjustments. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (qf) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s 's general or specific ~~authorizations and~~ authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting ~~principles. To~~ principles and to maintain accountability for assets, ; (iii) access to assets is permitted only in accordance with management’s 's general or specific authorization, ; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (rg) Subsequent to the respective dates as of which information is given in the Offering Documents and prior to each Closing Date, except as set forth in or contemplated by the Offering Documents, (i) there has not been and will not have been any change in the capitalization of the Company, or any material adverse change in the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company (except for any change in capitalization resulting from a pending dispute between the Company and Business Concepts, Inc. regarding the issuance of up to 1,200,000 shares of Common Stock) (ii) the Company has not and will not have paid or declared any dividends or other distributions of any kind on any class of its capital stock. The Company does not anticipate any material adverse changes in the Company's business, prospects or financial condition within the next twelve months. (h) The Company is not an "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended. (i) Except as set forth in the ~~Registration Statement~~ Offering Documents or elsewhere herein there are no actions, suits, proceedings, claims, hearings or any investigations pending or, to the Company's knowledge, threatened against or affecting the Company or any of its respective officers in their capacity as such, before or by any federal or state court, commission (including but not limited to the Food and ~~Prospectus~~Drug Administration), regulatory body, administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding might adversely affect the Company or its business, properties, business prospects, conditions (financial or otherwise) or results of operations taken as a whole (a "Material Adverse Effect"). (j) Except as disclosed in the Offering Documents, the Company has, and at each Closing Date will have, (i) all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to carry on its business as contemplated in the Offering Documents, (ii) complied in all material respects with all laws, regulations and orders applicable to it or its business. The Company is not, and at each Closing Date will not be, in violation of any provision of its certificate of incorporation or by-laws. (k) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions on its part herein contemplated. (l) The Company has full corporate power and authority to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company and is enforceable against the Company in accordance with the terms hereof. The performance of this Agreement and the consummation of the transactions contemplated hereby will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any other party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, the certificate of incorporation or by-laws of the Company, any contract, license or other agreement to which the Company is a party or by which the Company or any of its properties is bound or affected, or violate or conflict with any judgment, ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties of the Company. (m) The Company has good and marketable title to all properties and assets described in the Offering Documents as owned by it, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Offering Documents or are not material to the business of the Company. (n) No statement, representation, warranty or covenant made by the Company in this Agreement or made in any certificate or document required by this Agreement to be delivered to the Placement Agent was or will be, when made, inaccurate, untrue or incorrect in any material respect. (o) The Company is not involved in any material labor dispute nor, to the knowledge of the Company, is any such dispute threatened. (p) The Company owns, or is licensed or otherwise has the full exclusive right to use, all material trademarks and trade names which are used in or necessary for the conduct of its business except as may be described in the Offering Documents. No claims have been asserted by any person to the use of any such trademarks or trade names or challenging or questioning the validity or effectiveness of any such trademark or trade name. The use, in connection with the business and operations of the Company of such trademarks and trade names does not, to the Company's knowledge, infringe on the rights of any person. (q) Neither the Company nor, to the Company's knowledge, any person acting on the Company's behalf has (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any other unlawful bribe, rebate, payoff, influence payment or kickback. (r) No material relationship (as described in Item 404 of Regulation S-K), exists between or among the Company on the one hand, and any director or officer of the Company or any holder of 5% or more of any class of equity security of the Company or any affiliate of any such director, officer or stockholder of the Company on the other hand, except as described in the Offering Documents. (s) The Company has filed all income, franchise, sales and other tax returns required to be filed through the date hereof and has paid all taxes shown as due thereon, and since June 30, 1995 no tax deficiency has been determined adversely to the Company which has had (nor does the Company have any knowledge of any questions or disputes pending or threatened relating to a tax deficiency which, if determined adversely to the Company, might have) a Material Adverse Effect. (t) There are no contracts, agreements or understandings between the Company and any person (other than the Placement Agent), that would give rise to a valid claim against the Company or the Placement Agent for a brokerage commission, finder's fee or like payment in connection with the transactions contemplated by this Agreement except for the dispute referenced in paragraph (g)(i) above. (u) The Company causes to be maintained insurance covering the properties, operations, personnel and businesses of the Company in such amounts and against such losses and risks as are adequate in accordance with customary industry practice to protect the Company and its business. The Company has not received notice from any insurer or agent of such insurer that substantial capital improvements or other expenditures will have to be made in order to continue such insurance. All such insurance is outstanding and duly in force on the date hereof, and will be outstanding and duly in force on each Closing Date. (v) The Purchasers of Shares, and the Placement Agent Warrants when issued and consideration thereof has been received, will obtain valid and marketable title to the Shares and the Placement Agent Warrants, free of any adverse claim with respect thereto. The holders of Placement Agent Warrants, upon exercising of the Placement Agent Warrants, in accordance with the terms thereof, will receive shares of Common Stock which will be free of any adverse claim with respect thereto arising out of actions of or claims against the Company. (w) Neither the Company nor any of the officers or directors of the Company: (i) Has filed a registration statement which is the ~~Company and each entity that owns~~ subject of any pending proceeding or ~~possesses real property in which~~ examination under Section 8 of the ~~Company holds a security interest~~ Securities Act of 1933, as amended (the "Securities Act") or is ~~in material compliance with all material rules, laws and regulations relating~~ the subject of any refusal order or stop order thereunder within five years prior to the ~~use, treatment, storage and disposal~~ date of ~~toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business~~this Agreement; (ii) Is subject to any pending proceeding under Rule 261 or any similar rule adopted under Section 3(b) of the ~~Company has received no notice from any governmental authority~~ Securities Act or ~~third party~~ to an order entered thereunder within five years prior to the date of ~~an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus~~this Agreement; (iii) Has been convicted within five years prior to the ~~Company will not be required to make~~ date of this Agreement of any ~~future material capital expenditures to comply~~ felony or misdemeanor in connection with ~~Environmental Laws; and~~the purchase or sale of any security or involving the making of any false filing with the SEC; (iv) ~~no property which~~ Is subject to any order, judgment or decree of any court of competent jurisdiction temporarily or preliminary restraining or enjoining, or is ~~owned~~subject to any order, ~~leased~~ judgment or ~~occupied~~ decree or any court of competent jurisdiction entered within five years prior to the date of this Agreement permanently restraining or enjoining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security or involving the making of any false filing with the SEC; (v) Is subject to a United States Postal Service false representation order entered under Section 3005 of Title 39, United States Code, within five years prior to the date of this Agreement or is subject to a temporary restraining order or preliminary injunction entered under Section 3007 of Title 391 United States Code, with respect to conduc▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ violated Section 3005 of Title 391 United States Code; (vi) Is subject t▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇he SEC entered pursuant to Section 15(b), 15B(a) or 15B(c) of the Securities Exchange Act of 1934 (the "Exchange Act") or is subject to any order of the SEC entered pursuant to Section 203(3) or (f) of the Investment Advisers Act of 1940; (vii) Is suspended or expelled from membership in or suspended or barred from association with a member of an exchange registered as a national securities exchange pursuant to Section 6 of the Exchange Act, an association registered as a national securities association under Section 15A of the Exchange Act, or a Canadian securities exchange or association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade; or (viii) Is currently the subject of a Formal Order of Investigation issued by the ~~Company~~ SEC. (ix) Is or ~~in which the Company holds a security interest~~ has been ~~designated~~ involved with any other legal proceeding enumerated within Item 401 (f) of Regulation S-K as ~~a Superfund site pursuant to~~ promulgated by the ~~Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq~~SEC.~~), or otherwise designated as a contaminated site und~~

Appears in 1 contract

Sources: Placement Agent Agreement (Initial Acquisition Corp)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees ~~with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement~~that: (a) The Registration Statement ~~on Form S-11~~ has (~~File No.~~ i) ~~with respect to the Certificates, including the Prospectus subject to completion, has~~ been prepared by the Company in conformity with the requirements of the Securities Act, and the rules and regulations (the “Rules and ~~Regulations~~ Regulations”) of the Commission ~~thereunder and has~~ thereunder, (ii) been filed with the Commission under the Securities Act, and (iii) become effective under the Securities Act. 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 knowledge of the Company, threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement. (b) As (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the ~~Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto,~~ Prospectus complied or will comply ~~or complied~~ when so filed in all material respects with the ~~provisions and requirements of the Securities~~ Exchange Act and the ~~Rules~~ applicable rules and ~~Regulations. Neither~~ regulations of the Commission ~~nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus~~thereunder, ~~or issued a stop order with respect to the offering~~ (ii) each part of the ~~Certificates (if the~~ Registration ~~Statement has been declared effective)~~Statement, ~~or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of~~ when such ~~purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become~~ part became effective, ~~the Registration Statement~~ did not contain, and each such part, as amended or supplemented, if applicable, will ~~not or did~~ not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances in which they were made,~~ therein not misleading~~. When~~ , (iii) the Registration Statement ~~is or was declared effective by the Commission and at all times subsequent thereto until the termination~~ as of the ~~offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did~~ date hereof does 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, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in ~~order~~ all material respects with the Securities Act and the Rules and Regulations, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Debentures in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, 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 in under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not 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 and (vii) the Prospectus does 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 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 do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee. (c) The Company ~~has been duly incorporated and~~ is ~~validly existing as a corporation~~ not an “ineligible issuer” in ~~good standing under~~ connection with the ~~laws~~ offering of the ~~State of Minnesota~~Debentures pursuant to Rules 164, ~~with full power~~ 405 and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required 433 under the Securities Act, . Any free writing prospectus that the ~~Exchange Act~~Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or ~~under state or other securities or Blue Sky laws~~will be, ~~all of which requirements have been satisfied. (h) Except as is otherwise expressly described in~~ filed with the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor Commission in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning requirements of the Securities ~~Act, the Public Company Accounting Oversight Board (PCAOB),~~ Act and the Rules and Regulations. ~~The financial statements of~~ Each free writing prospectus that the Company ~~set forth in~~ has filed, or is required to file, pursuant to Rule 433(d) under the ~~Registration Statement and Prospectus (~~Securities Act or ~~incorporated therein~~ that was prepared by ~~reference)~~ or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and ~~Regulations~~ Regulations. Except for the free writing prospectuses, if any, identified in Schedule I hereto, and electronic road shows, if any, furnished to ~~be included in~~ you before first use, the ~~Registration Statement~~Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus. (kd) ~~Subsequent~~ The Company and each of its subsidiaries (as defined in Section 15) have been duly incorporated or organized, as the case may be, and are validly existing as their respective business entities and in good standing under the laws of their respective jurisdictions of incorporation or organization, as the case may be, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective ~~dates as of~~ businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which ~~information is given in the Registration Statement and Prospectus~~they are engaged, except ~~as is otherwise disclosed~~ where the failure to so qualify or to be in ~~the Registration Statement or Prospectus, there has~~ good standing would not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably ~~could~~ be expected to have a material adverse effect on the ~~condition (~~financial condition, business, properties or ~~otherwise), earnings,~~ results of operations ~~or business~~ of the ~~Company~~Company and its subsidiaries taken as a whole (a “Material Adverse Effect”). (le) ~~Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the~~ The Company has ~~good~~ an authorized capitalization as set forth in each of the Time of Sale Prospectus and ~~marketable title to~~ the Prospectus, and all of the ~~property~~issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, ~~real~~ are fully paid and ~~personal~~non-assessable and conform in all material respects to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus; and all of the issued and outstanding shares of capital stock or membership interests, as the case may be, of each wholly-owned subsidiary of the Company have been duly and ~~assets described in~~ validly authorized and issued and are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or indirectly by the ~~Registration Statement or Prospectus as being owned by it~~Company, free and clear of ~~any and~~ all ~~pledges,~~ liens~~, security interests~~, encumbrances, ~~equities, charges~~ equities or claims, other than ~~such as would not have a material adverse effect on the condition (financial~~ liens, encumbrances, equities or ~~otherwise), earnings, operations or business~~ claims described in each of the ~~Company; (ii)~~ Time of Sale Prospectus and the ~~agreements~~ Prospectus, and none of such shares of capital stock or membership interests, as the case may be, were issued in violation of preemptive or other similar rights arising by operation of law, under the charter and by-laws of the Company or under any agreement to which the Company is a party ~~described in~~ or otherwise. (f) The Company has all requisite power and authority to execute, deliver and perform its respective obligations under this Agreement and each of the ~~Registration Statement~~ other Operative Documents to which it is a party (including issuing the Underlying Securities upon conversion of the Debentures). (g) This Agreement has been duly authorized, executed and ~~Prospectus are valid agreements, enforceable~~ delivered by the Company. (h) The Indenture has been duly authorized by the Company, and when duly executed by the proper officers of the Company ~~except as~~ (assuming due execution and delivery by the ~~enforcement thereof may be limited~~ Trustee) and delivered by the Company, will constitute a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors’ rights ~~generally~~ and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or ~~by judicial limitations on~~ in equity). The Indenture has been duly qualified under the ~~right of specific performance; and~~Trust Indenture Act. (~~iii~~i) The Debentures have been duly authorized by the Company ~~has~~ and when duly issued by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Debentures by the Trustee, when delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable ~~leases for all properties described~~ against the Company in ~~the Registration Statement and Prospectus as leased by it~~accordance with their terms, ~~except as the enforcement thereof may be limited by~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors’ rights ~~generally~~ and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (j) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the New York Stock Exchange (the “NYSE”); the Company has not received any notification that the Commission or the NYSE is contemplating terminating such registration or listing; and the Underlying Securities issuable upon conversion of the Debentures have been duly authorized and reserved and, when issued upon conversion of the Debentures in accordance with the terms of the Debentures, will be validly issued, fully paid and non-assessable, and the issuance of the Underlying Securities will not be subject to any preemptive or similar rights. (k) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, including the issuance of the Underlying Securities upon conversion of the Debentures, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by ~~judicial limitations on~~ which the ~~right~~ Company or any of ~~specific performance~~its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the Certificate of Incorporation or by-laws of the Company or any of its subsidiaries or (iii) result in the violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except in the case of clauses (i) and (iii), such conflicts, breaches or violations that in the aggregate would not reasonably be expected to have a Material Adverse Effect. Except as ~~set forth~~ may be required in connection with compliance with the securities or Blue Sky laws of various jurisdictions, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or any of the other Operative Documents by the Company. (l) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the ~~Registration Statement~~ Time of Sale Prospectus and ~~Prospectus~~the Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly in all material respects the financial condition and results of operations and cash flows of the entities purported to be shown thereby, at the ~~Company owns or leases~~ dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The other financial data, selected pro forma ratios and operating data included in the Time of Sale Prospectus and the Prospectus is presented fairly, in all material respects, and has been prepared on a basis consistent with such ~~properties as are necessary to its operations as now conducted~~financial statements and the books and records of the Company. (m) ~~The~~ There are no legal or governmental proceedings pending to which the Company ~~was organized and has been operated to qualify as~~ or any of its subsidiaries is a ~~real estate investment trust under Section 856~~ party or of which any property or assets of the ~~Internal Revenue Code and, to~~ Company or any of its subsidiaries is the ~~knowledge~~ subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and the ~~Company, no event has occurred~~ Prospectus and proceedings that would ~~cause~~ not have a Material Adverse Effect, or would not materially and adversely affect the power or ability of the Company to ~~fail~~ perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so ~~qualify~~described; and to the Company’s knowledge, no such proceedings are threatened by governmental authorities or threatened by others. (n) ~~The~~ Neither the Company nor any of its subsidiaries has ~~timely filed (~~sustained, since the date of the latest audited financial statements included in each of the Time of Sale Prospectus and the Prospectus, any material loss or ~~has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency~~ interference with its business that has ~~been or~~had a Material Adverse Effect, ~~to the best~~ whether from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the ~~Company’s knowledge~~Time of Sale Prospectus and the Prospectus; and, ~~could be asserted against~~ since such date, there has not been any material change in the capital stock or material increase in the long-term debt of the Company ~~that might have a material adverse effect on~~ or any of its subsidiaries or any change, in or affecting the ~~condition (~~general affairs, management, consolidated financial ~~or otherwise)~~position, ~~earnings~~stockholders’ equity, results of operations, business or ~~properties~~ prospects of the ~~Company~~Company and its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect, ~~and all tax liabilities are adequately provided for~~ other than as set forth or contemplated in ~~the books~~ each of the ~~Company~~Time of Sale Prospectus and the Prospectus. (o) The Company ~~owns,~~ is subject to and in full compliance with the reporting requirements of Section 13 or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business 15(d) of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the CompanyExchange Act. (p) The Company ~~has not taken~~ (i) makes and ~~will not take, directly or indirectly, any action~~ keeps accurate books and records and (~~and does not know of any action by its directors, officers, members or others~~ii) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s ~~general or specific authorizations and~~ authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements in conformity with ~~generally accepted accounting principles. To~~ GAAP and to maintain accountability for its assets, (C) access to its assets is permitted only in accordance with management’s ~~general or specific authorization,~~ authorization and (D) the recorded accountability for its assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (q) Ernst & Young LLP, who have certified certain financial statements of the Company, whose report appears in the Time of Sale Prospectus and the Prospectus and who have delivered the initial letter referred to in Section 7(i) hereof, are and have been, independent public accountants as required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported. (r) ~~Except as set forth~~ KPMG, who have performed an audit of certain financial statements of Excel Coal Limited (“Excel”), whose report appears in the ~~Registration Statement~~ Time of Sale Prospectus and ~~Prospectus:~~the Prospectus and who have delivered the initial letter referred to in Section 7(k) hereof, are and have been independent chartered accountants with respect to Excel under the Institute of Chartered Accountants in Australia’s Code of Professional Conduct – Section F1 “Professional Independence” during the periods covered by the financial statements on which they reported. (is) The market-related and industry data included in the Time of Sale Prospectus and the Prospectus are based upon estimates by the Company on or derived from sources that the Company and ~~each entity that owns or possesses real property~~ the subsidiaries believe to be reliable and accurate in ~~which the Company holds a security interest is in material compliance with~~ all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business;respects. (iit) ~~the~~ The Company has ~~received no notice from~~ such permits, licenses, franchises, certificates, consents, orders and other approvals or authorizations of any governmental or regulatory authority ~~or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus;~~ (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.“Permits”), including, without limitation, any permits or ~~otherwise designated as a contaminated site und~~app

Appears in 1 contract

Sources: Underwriting Agreement (Peabody Energy Corp)

Representations, Warranties and Agreements of the Company. The Company ~~represents and~~ represents, warrants to and agrees with each Underwriter, the ~~Underwriter as follows, which representations~~ Selling Stockholder and ~~warranties shall be deemed to be made continuously throughout the term of this Agreement~~Post that: (a) The Registration Statement ~~on Form S-11 (File No. ) with respect to~~ has become effective; no stop order suspending the ~~Certificates~~effectiveness of the Registration Statement is in effect, ~~including the Prospectus subject to completion, has been prepared~~ and no proceedings for such purpose are pending before or threatened by the ~~Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act~~Commission. (b) As For purposes of this Agreement, the ~~Effective Date~~“Applicable Time” is 4:30 p.m. (Eastern time) on November 21, ~~and at all times subsequent thereto until~~ 2022. (i) 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 ~~termination of the Offering~~statements therein not misleading, (ii) the Registration Statement and ~~Prospectus~~the Prospectus comply and, ~~and all amendments thereof and supplements thereto~~as amended or supplemented, if applicable, will comply ~~or complied~~ in all material respects with ~~the provisions and requirements of~~ the Securities Act and the ~~Rules~~ applicable rules and ~~Regulations. Neither~~ regulations of the Commission ~~nor~~ thereunder, (iii) the Time of Sale Prospectus, as of the Applicable Time, does not, and at the time of each sale of the Stock in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Delivery Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any ~~state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation~~ untrue statement of a ~~Preliminary~~ 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, ~~or issued a stop order with respect to the offering~~ as of the ~~Certificates (if the Registration Statement has been declared effective)~~Applicable Time, or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did does not 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 and (v) the Prospectus does 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 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 do not apply to information contained in or omitted from the Registration Statement, the Time of Sale Prospectus or the Prospectus in reliance upon and in conformity with information relating to (i) any Underwriter, furnished to the Company in writing through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 9(g), (ii) the Selling Stockholder, furnished to the Company in writing by the Selling Stockholder specifically for inclusion therein, which information is limited to the legal name of, and the number of shares of Stock offered by, the Selling Stockholder (the “Selling Stockholder Information”) or (iii) Post, furnished to the Company in writing by Post specifically for inclusion therein, which information is limited to the information in the row beginning with “Post Holdings, Inc.” in the table appearing under the caption “Selling Stockholder” in the Time of Sale Prospectus and the Prospectus (the “Post Information”). (c) The documents incorporated by reference in the Time of Sale Prospectus and the Prospectus, when they were filed with the Commission, conformed in all material respects to the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission, will conform, in all material respects, to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in under which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have No documents were filed with the Commission ~~any amendment thereof or supplement thereto) will not or did not contain any untrue statement~~ since the Commission’s close of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the ~~condition (financial or otherwise)~~business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualificationexcept as set forth on Schedule V(b) hereto. (d) The Company ~~has operated~~ is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in 433 under the ~~Registration Statement and Prospectus, all of which are, to~~ Securities Act. Any free writing prospectus that the ~~Company’s knowledge, valid and in full force and effect. The~~ Company is ~~conducting its business~~ required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in ~~substantial compliance~~ accordance with ~~all~~ the requirements of the Securities Act and the applicable ~~laws,~~ rules and regulations of the ~~jurisdictions in which it is conducting business, and~~ Commission thereunder. Each free writing prospectus that the Company has filed, or is ~~not in material violation~~ required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of ~~any applicable law, order, rule, regulation, writ, injunction, judgment~~ or ~~decree of any court, government~~ used or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument referred to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated complies or will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and ~~fairly present~~ the ~~financial position~~ applicable rules and ~~the results of operations~~ regulations of the ~~Company at the respective dates and~~ Commission thereunder. Except for the ~~respective periods~~ free writing prospectuses, if any, identified in Schedule V(a) hereto, and electronic road shows, if any, each furnished to ~~which they apply in accordance with generally accepted accounting principles consistently applied throughout~~ you before first use, the ~~periods involved;~~ Company has not prepared, used or referred to, and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (will not, without your prior consent, prepare, use or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statementrefer to, any free writing prospectus. (ke) ~~Subsequent~~ The Company and each of the Subsidiaries (as defined below) has been duly incorporated or organized (as applicable), is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the ~~respective dates as~~ conduct of ~~which information is given in the Registration Statement and Prospectus~~its businesses requires such qualification, except ~~as is otherwise disclosed~~ where the failure to be so qualified or in ~~the Registration Statement~~ good standing would not, individually or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, ~~are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which~~ reasonably ~~could~~ be expected to have a material adverse effect on the condition (financial or otherwise), ~~earnings~~results of operations, ~~operations~~ stockholders’ equity, properties or business of the Company and the Subsidiaries, taken as a whole (a “Material Adverse Effect”). The Company and each of the Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries set forth on Schedule VI hereto (each, a “Subsidiary” and collectively, the “Subsidiaries”). (f) The Company has an authorized capitalization as set forth in the Time of Sale Prospectus and the Prospectus (except for subsequent issuances of capital stock, if any, pursuant to employee benefit plans described in each of the Time of Sale Prospectus and the Prospectus), and all of the issued shares of capital stock of the Company, as of the Delivery Date have been (or, in the case of the Stock, will be) duly authorized and validly issued, and are fully paid and non-assessable. All of the issued shares of capital stock of the Company and each of the Subsidiaries (as applicable) and the other ownership interests of each of the Subsidiaries (as applicable) have been duly authorized and validly issued, are fully paid and non-assessable and (except as set forth in each of the Time of Sale Prospectus and the Prospectus) and, in the case of such shares of capital stock or other ownership interests of each of the Subsidiaries, are owned directly or indirectly by such Subsidiaries, free and clear of all liens, encumbrances, equities or claims, except for (i) liens securing the Company’s senior secured credit facilities and (ii) such other liens, encumbrances, equities or claims as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (g) The shares of the Stock have been duly authorized and validly issued and are fully paid and non-assessable, and the shares of the Stock are not subject to any preemptive or similar rights. The shares of the Stock conform in all material respects to the description thereof in each of the Time of Sale Prospectus and the Prospectus. (h) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company. (li) ~~Except~~ The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions to which it is a party contemplated hereby and by the Registration Statement, the Time of Sale Prospectus and the Prospectus (including the Share Repurchase) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of any of the Company or the Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which any of the Company or the Subsidiaries is a party or by which any of the Company or the Subsidiaries is bound or to which any of the property or assets of any of the Company or the Subsidiaries is subject; (ii) result in any violation of the provisions of the charter or bylaws (or similar organizational documents) of any of the Company or the Subsidiaries; or (iii) result in any violation by the Company or the Subsidiaries of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Company or the Subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), conflicts, breaches, violations, defaults, liens, charges or encumbrances that would not reasonably be expected to have a Material Adverse Effect. (j) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over any of the Company or the Subsidiaries or any of their respective properties or assets is required for the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions to which it is a party contemplated hereby and by the Registration Statement, the Time of Sale Prospectus, except for such consents, approvals, authorizations, orders, filings, registrations or qualifications (w) as ~~is otherwise expressly disclosed~~ may be required under state securities or Blue Sky laws or foreign laws in connection with the purchase and distribution of the Stock by the Underwriters, (x) with respect to the Financial Industry Regulatory Authority (“FINRA”), (y) as may be required under the rules of The New York Stock Exchange or (z) as have been obtained or made and are in full force and effect. (k) The historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Time of Sale Prospectus and Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act, present fairly the financial condition, results of operations and cash flows of the Company at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved. All disclosures included or incorporated by reference in the Registration ~~Statement or Prospectus:~~ Statement, the Time of Sale Prospectus and the Prospectus regarding “non-GAAP financial measures” (ias such term is defined by the rules and regulations of Commission) ~~the Company has good and marketable title to~~ comply in all material respects with Regulation G of the ~~property, real and personal~~Exchange Act, and ~~assets described~~ Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration ~~Statement or~~ Statement, Time of Sale Prospectus ~~as being owned by it, free~~ and ~~clear of any~~ the Prospectus fairly presents the information called for in all material respects and ~~all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on~~ has been prepared in accordance with the ~~condition (financial or otherwise), earnings, operations or business of the Company;~~Commission’s rules and guidelines applicable thereto. (iil) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted[Reserved]. (m) ~~The Company was organized and~~ PricewaterhouseCoopers LLP, which has ~~been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge~~ audited certain financial statements of the Company, ~~no event~~ whose reports appear or are incorporated by reference in the Time of Sale Prospectus and which has ~~occurred that would cause~~ delivered the initial letter referred to in Section 8(f) hereof, are independent registered public accountants as required by the Securities Act and the rules and regulations thereunder and the rules and regulations of the Public Company ~~to fail to so qualify~~Accounting Oversight Board (the “PCAOB”). (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable ~~assurance~~ assurances that (i) transactions are executed in accordance with management’s general or specific ~~authorizations and~~ authorization, (ii) transactions are recorded as necessary (A) to permit preparation of the financial statements in conformity with generally accepted accounting ~~principles. To~~ principles or any other criteria applicable to such statements and (B) to maintain accountability for assets, (iii) access to the assets is permitted only in accordance with management’s general or specific authorization, ~~and~~ (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any ~~differences.~~ differences and (rv) ~~Except as set forth~~ the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration ~~Statement~~ Statement, the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the Time of Sale Prospectus and the Prospectus: , since the end of the Company’s most recent audited fiscal year, (i) the Company has not been advised of or become aware of any material weakness in the Company’s internal control over financial reporting (whether or not remediated) and ~~each entity~~ (ii) there has been no change in the Company’s internal control over financial reporting that ~~owns~~ has materially affected, or ~~possesses real property~~ is reasonably likely to materially affect, the Company’s internal control over financial reporting. (o) The Company maintains disclosure controls and procedures (as such term is defined in ~~which~~ Rule 13a-15(e) under the ~~Company holds a security interest is in~~ Exchange Act) that complies with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material ~~compliance with all material rules, laws and regulations~~ information relating to the ~~use~~Company and the Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and to the Company’s knowledge, ~~treatment, storage~~ such disclosure controls and ~~disposal of toxic substances and protection of health or~~ procedures are effective in all material respects to perform the ~~environment (the “Environmental Laws”)~~ functions for which ~~are applicable to its business;~~they were established. (iip) Since the date of the most recent balance sheet of the Company reviewed or audited by PricewaterhouseCoopers LLP, the Company has ~~received no notice from~~ not been advised of or become aware of (A) any ~~governmental authority or third party of an asserted claim under Environmental Laws, which claim is required~~ significant deficiencies not previously disclosed to ~~be disclosed~~ the Company’s auditors and audit committee in the ~~Registration Statement and~~ design or operation of internal controls that could adversely affect the ~~Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by~~ ability of the Company or the Subsidiaries to record, process, summarize and report financial data, or any material weaknesses in ~~which~~ internal controls or (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company ~~holds a security interest has been designated as a Superfund site pursuant to~~ and each of the ~~Comprehensive Response~~Subsidiaries. (q) The section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Critical Accounting Estimates” set forth in the Company’s annual report on Form 10-K for the fiscal year ended September 30, ~~Compensation~~ 2022 incorporated by reference in the Time of Sale Prospectus and ~~Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site und~~t

Appears in 1 contract

Sources: Underwriting Agreement (Bellring Brands, Inc.)

Appears in 1 contract

Sources: Stock Purchase Agreement (Dobson Communications Corp)

Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with the Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement: (a) The Registration Statement on Form S-11 (File No. 333-220531) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act. (b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration Statement has been declared effective), or instituted or, to the Company’s knowledge, threatened the institution of, proceedings for any of such purposes. When the Registration Statement shall become effective and when any post-effective amendment thereto shall become effective, the Registration Statement will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of the offering, the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment thereof or supplement thereto) will not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification. (d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company’s knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound. (f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under: (i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound; (ii) the articles of incorporation or bylaws of the Company: or (iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties. (g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied. (h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company’s knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby. (i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws. (j) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement. (k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been: (i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company; (ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders’ equity, results of operations or general condition of the Company; (iii) any transaction entered into by the Company that is material to the Company; (iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or (v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company. (l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus: (i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company; (ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance; and (iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by judicial limitations on the right of specific performance. Except as set forth in the Registration Statement and Prospectus, the Company owns or leases all such properties as are necessary to its operations as now conducted. (m) The Company was organized and has been operated to qualify as a real estate investment trust under Section 856 of the Internal Revenue Code and, to the knowledge of the Company, no event has occurred that would cause the Company to fail to so qualify. (n) The Company has timely filed (or has timely requested an extension of time to file) all necessary federal and state income and franchise tax returns and has paid all taxes shown thereon as due; there is no tax deficiency that has been or, to the best of the Company’s knowledge, could be asserted against the Company that might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or properties of the Company, and all tax liabilities are adequately provided for in the books of the Company. (o) The Company owns, or possesses adequate rights to use, all patents, patent rights, inventions, trade secrets, know-how, technology, service marks, trade names, copyrights, trademarks and proprietary rights or information which are necessary for the conduct of its present or intended business as described in the Registration Statement or Prospectus. The expiration of any patents, patent rights, trade secrets, trademarks, service marks, trade names or copyrights would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and the Company has not received any notice of, and has no knowledge of, any infringement of or conflict with the asserted rights of others with respect to any patent, patent rights, inventions, trade secrets, know-how, technology, trademarks, service marks, trade names or copyrights that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company. (p) The Company has not taken and will not take, directly or indirectly, any action (and does not know of any action by its directors, officers, members or others) which has constituted or is designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation, as defined in the Exchange Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Certificates. The Company has not distributed and will not distribute prior to the completion of the distribution of the Certificates, any offering material in connection with the offering and sale of the Certificates other than any Preliminary Prospectus, the Prospectus, the Registration Statement and other materials, if any, permitted by the Securities Act. (q) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorizations and transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles. To maintain accountability for assets, access to assets is permitted only in accordance with management’s general or specific authorization, and the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (r) Except as set forth in the Registration Statement and Prospectus: (i) the Company and each entity that owns or possesses real property in which the Company holds a security interest is in material compliance with all material rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (the “Environmental Laws”) which are applicable to its business; (ii) the Company has received no notice from any governmental authority or third party of an asserted claim under Environmental Laws, which claim is required to be disclosed in the Registration Statement and the Prospectus; (iii) the Company will not be required to make any future material capital expenditures to comply with Environmental Laws; and (iv) no property which is owned, leased or occupied by the Company or in which the Company holds a security interest has been designated as a Superfund site pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a ~~contaminated site und~~contaminate

Appears in 1 contract

Sources: Distribution Agreement (American Church Mortgage Co)

Common use of Representations, Warranties and Agreements of the Company Clause in Contracts