Representations Warranties and Certain Agreements. The Company and each Guarantor represents and warrants to the Dealer Manager, and agrees with the Dealer Manager, as follows: (a) A registration statement on Form S-4, as amended by Amendment No.1 to such registration statement, (Registration No. 333-90556) (the "INITIAL REGISTRATION STATEMENT") in respect of the New Notes has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to the Dealer Manager, have been declared effective by the Commission in such form; other than (i) the documents incorporated by reference in the prospectus included therein (which have heretofore been delivered to the Dealer Manager), (ii) the exhibits to the Initial Registration Statement and such documents and (iii) any prospectuses filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "ACT") (which have heretofore been delivered or made available to the Dealer Manager), no other documents with respect to the Initial Registration Statement or documents incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act, is herein called a "PRELIMINARY PROSPECTUS"); the various parts of the Initial Registration Statement, including all exhibits (but excluding the Form T-1), annexes and schedules thereto and including (i) the information contained in a form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 2(b) hereof and (ii) the documents incorporated by reference into the prospectus contained in the Initial Registration Statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, are herein collectively called the "REGISTRATION STATEMENT"; such final prospectus, in the form included in the Registration Statement at the time it became effective or first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "PROSPECTUS"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the relevant item or items of Form S-4 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement. (b) The documents incorporated by reference in the Prospectus, 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 Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents when they become effective or were filed with the Commission, as the case may be, 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 or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Registration Statement conforms, and the Prospectus, any further amendments or supplements to the Registration Statement or the Prospectus and the Exchange Offer Material will conform at the time of filing, in all material respects to the requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the "TRUST INDENTURE ACT"), as applicable, and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto, as of the applicable filing date as to the Prospectus and any amendment or supplement thereto and as of the date of first use as to any other Exchange Offer Material, 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. (d) Neither the Company nor any of its subsidiaries which meets the definition of a significant subsidiary as defined in Rule 1-02 of Regulation S-X (a "SIGNIFICANT SUBSIDIARY") has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, 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 Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any increase in long-term debt of the Company or any of its subsidiaries (other than borrowings under the Credit Agreement, dated May 1, 1998, and any amendments thereto, by and among the Company, the lending institutions named therein and KeyBank National Association (the "Credit Agreement")) or any material adverse change, in the condition, financial or otherwise, or in the earnings, management, financial position, shareholders' equity or results of operations or prospects whether or not arising from transactions in the ordinary course or business, of the Company and its subsidiaries, considered as one entity (a "Material Adverse Change") or any development involving a prospective Material Adverse Change, otherwise than as set forth or contemplated in the Prospectus. (e) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware. The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and to consummate the Exchange Offer in accordance with its terms. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing, could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. (f) Each of the Significant Subsidiaries and each Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of 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, in the case of each Guarantor, to consummate the Exchange Offer in accordance with its terms. Each of the Significant Subsidiaries and each Guarantor is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. All of the issued and outstanding capital stock of each of the Significant Subsidiaries and each Guarantor 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 other than the Credit Agreement. (g) The Company and each Guarantor has the corporate power and authority to take, and has taken, all necessary corporate action to authorize (i) the making and consummation of the Exchange Offer, (ii) the Proposed Amendments to the Old Indenture; (iii) the execution, delivery and performance of the New Indenture and the New Notes and (iv) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and the Company has the corporate power and authority to take, and has taken, all necessary corporate action to authorize the payment for Consents by the Company pursuant to the Exchange Offer; and the Company and each Guarantor has taken or will take all necessary corporate action to authorize any amendments or supplements to, or modification of, the Exchange Offer and the Exchange Offer Materials. (h) This Agreement has been duly executed and delivered by, and is a valid and binding agreement of, the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles (the "ENFORCEABILITY EXCEPTIONS"). (i) The supplemental indenture to the Old Indenture, effecting the Proposed Amendments (the "SUPPLEMENTAL INDENTURE"), when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, subject to the Enforceability Exceptions; and on the date the Company completes the Exchange Offer (the "Closing Date"), the Old Indenture as supplemented by the Supplemental Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder. (j) On or prior to the Closing Date, the New Indenture shall have been duly executed and delivered by the Company and each of the Guarantors and qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery thereof by the New Trustee, will constitute a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to the Enforceability Exceptions. (k) The New Notes, when executed, authenticated, issued in accordance with the terms of the New Indenture and delivered to the holders of the Old Notes who tender their Old Notes in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and be entitled to the benefits of the New Indenture; and the guarantees of the New Notes issued by the Guarantors, as of the Closing Date, will be in the respective forms contemplated by the New Indenture, will have been duly authorized by the Guarantors and, when executed, authenticated and issued in accordance with the terms of the New Indenture, upon endorsement of the New Notes by each of the Guarantors and when delivered to the holders of the Old Notes who tender their Old Notes, in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of each of the Guarantors, enforceable against each Guarantor in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the New Indenture. (l) The Old Notes, the Old Indenture, the New Notes, the Guarantees and the New Indenture conform or will conform in all material respects to the respective statements relating thereto contained in the Prospectus. (m) Except as otherwise disclosed in the Prospectus as of the date hereof (the "Commencement Date") and except as otherwise disclosed in the Prospectus as amended and supplemented as of the Closing Date, subsequent to the respective dates as of which information is given in the Prospectus: (i) there has been no Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change; (ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or any of its subsidiaries (other than dividends paid to the Company or other subsidiaries of the Company) on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock other than regular quarterly dividends payable on the Company's Series D Preferred Stock; and (iv) there has been no material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, considered as one entity, except in each case described in the Prospectus. (n) Complete and correct copies of the Exchange Offer Material have been furnished to the Dealer Manager or will be furnished to the Dealer Manager no later than the Commencement Date. (o) Ernst & Young LLP (the "INDEPENDENT ACCOUNTANTS"), who have expressed their opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) and supporting schedules included or incorporated by reference in the Exchange Offer Material are independent public or certified public accountants within the meaning of the AICPA Rules of Practice. (p) The statements set forth in the Prospectus as amended or supplemented under the caption "Description of the New Notes", insofar as they purport to constitute a summary of the terms of the New Notes, and as set forth under the captions "Risk Factors", "Summary Comparison of the Key Differences between the Old Indenture and the New Indenture", "The Consent Solicitation", "Description of the New Notes" and "Material United States Federal Income Tax Consequences", insofar as they purport to constitute a summary of the provisions of the laws and documents referred to therein, are accurate in all material respects. (q) The financial statements, together with the related schedules and notes, included or incorporated by reference in the Exchange Offer Material present fairly in all material respects the consolidated financial position of the Company and its subsidiaries considered as one entity, as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. (r) All of the outstan
Appears in 1 contract
Representations Warranties and Certain Agreements. The Company and each Guarantor Each Fund hereby represents and warrants to the Dealer Manager, and agrees with the Dealer Manager, as follows:
Parent that (a) A registration statement on Form S-4, as amended by Amendment No.1 to such registration statement, (Registration No. 333-90556) (the "INITIAL REGISTRATION STATEMENT") in respect of the New Notes it has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to the Dealer Manager, have been declared effective by the Commission in such form; other than (i) the documents incorporated by reference in the prospectus included therein (which have heretofore been delivered to the Dealer Manager), (ii) the exhibits to the Initial Registration Statement and such documents and (iii) any prospectuses filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "ACT") (which have heretofore been delivered or made available to the Dealer Manager), no other documents with respect to the Initial Registration Statement or documents incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act, is herein called a "PRELIMINARY PROSPECTUS"); the various parts of the Initial Registration Statement, including all exhibits (but excluding the Form T-1), annexes and schedules thereto and including (i) the information contained in a form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 2(b) hereof and (ii) the documents incorporated by reference into the prospectus contained in the Initial Registration Statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, are herein collectively called the "REGISTRATION STATEMENT"; such final prospectus, in the form included in the Registration Statement at the time it became effective or first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "PROSPECTUS"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the relevant item or items of Form S-4 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement.
(b) The documents incorporated by reference in the Prospectus, 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 Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents when they become effective or were filed with the Commission, as the case may be, 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 or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) The Registration Statement conforms, and the Prospectus, any further amendments or supplements to the Registration Statement or the Prospectus and the Exchange Offer Material will conform at the time of filing, in all material respects to the requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the "TRUST INDENTURE ACT"), as applicable, and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto, as of the applicable filing date as to the Prospectus and any amendment or supplement thereto and as of the date of first use as to any other Exchange Offer Material, 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.
(d) Neither the Company nor any of its subsidiaries which meets the definition of a significant subsidiary as defined in Rule 1-02 of Regulation S-X (a "SIGNIFICANT SUBSIDIARY") has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, 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 Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any increase in long-term debt of the Company or any of its subsidiaries (other than borrowings under the Credit Agreement, dated May 1, 1998, and any amendments thereto, by and among the Company, the lending institutions named therein and KeyBank National Association (the "Credit Agreement")) or any material adverse change, in the condition, financial or otherwise, or in the earnings, management, financial position, shareholders' equity or results of operations or prospects whether or not arising from transactions in the ordinary course or business, of the Company and its subsidiaries, considered as one entity (a "Material Adverse Change") or any development involving a prospective Material Adverse Change, otherwise than as set forth or contemplated in the Prospectus.
(e) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware. The Company has corporate requisite power and authority to ownexecute, lease deliver and operate its properties and to conduct its business as described in the Registration Statement and to consummate the Exchange Offer in accordance with its terms. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing, could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
(f) Each of the Significant Subsidiaries and each Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of 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, in the case of each Guarantor, to consummate the Exchange Offer in accordance with its terms. Each of the Significant Subsidiaries and each Guarantor is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. All of the issued and outstanding capital stock of each of the Significant Subsidiaries and each Guarantor 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 other than the Credit perform this Agreement.
(g) The Company and each Guarantor has the corporate power and authority to take, and has taken, all necessary corporate action to authorize (i) the making and consummation of the Exchange Offer, (ii) the Proposed Amendments to the Old Indenture; (iii) the execution, delivery and performance of the New Indenture and the New Notes and (ivb) the execution, delivery and performance of this Agreement by such Fund has been duly and the consummation of the transactions contemplated hereby; validly authorized and the Company has the corporate power and authority to take, and has taken, approved by all necessary corporate action to authorize the payment for Consents by the Company pursuant to the Exchange Offer; it and the Company and each Guarantor has taken or will take all no other proceedings on its of his behalf are necessary corporate action to authorize any amendments or supplements totherefor, or modification of, the Exchange Offer and the Exchange Offer Materials.
(hc) This this Agreement has been duly and validly executed and delivered byby it and (assuming due execution and delivery of this Agreement, the Merger Agreement and is the Limited Guarantee by all the other parties hereto and thereto) constitutes a legal, valid and binding agreement of, the Company and each Guarantorobligation of such Fund, enforceable against the Company and each Guarantor such Fund in accordance with its terms, except (d) such Fund has, and will have at all times during which this Agreement is in effect, available funds or uncalled capital commitments in an amount not less than its Commitment Amount hereunder, (e) the execution, delivery and performance by such Fund of this Agreement do not violate any applicable Law or such Fund’s organizational documents, and (f) other than any filing by it with the SEC as the enforcement hereof may be limited required by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance Sections 13(d) or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles (the "ENFORCEABILITY EXCEPTIONS").
(i16(a) The supplemental indenture to the Old Indenture, effecting the Proposed Amendments (the "SUPPLEMENTAL INDENTURE"), when duly executed and delivered in accordance with its terms by each of the parties theretoExchange Act, will constitute a valid and legally binding agreement none of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, subject to the Enforceability Exceptions; and on the date the Company completes the Exchange Offer (the "Closing Date"), the Old Indenture as supplemented by the Supplemental Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(j) On or prior to the Closing Date, the New Indenture shall have been duly executed and delivered by the Company and each of the Guarantors and qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery thereof of this Agreement by it, the New Trustee, will constitute a valid and binding agreement consummation by it of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance transactions contemplated hereby or compliance by it with its terms, subject to the Enforceability Exceptions.
(k) The New Notes, when executed, authenticated, issued in accordance with the terms any of the New Indenture and delivered to the holders of the Old Notes who tender their Old Notes in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and be entitled to the benefits of the New Indenture; and the guarantees of the New Notes issued by the Guarantors, as of the Closing Date, will be in the respective forms contemplated by the New Indenture, will have been duly authorized by the Guarantors and, when executed, authenticated and issued in accordance with the terms of the New Indenture, upon endorsement of the New Notes by each of the Guarantors and when delivered to the holders of the Old Notes who tender their Old Notes, in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of each of the Guarantors, enforceable against each Guarantor in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the New Indenture.
(l) The Old Notes, the Old Indenture, the New Notes, the Guarantees and the New Indenture conform or will conform in all material respects to the respective statements relating thereto contained in the Prospectus.
(m) Except as otherwise disclosed in the Prospectus as of the date hereof (the "Commencement Date") and except as otherwise disclosed in the Prospectus as amended and supplemented as of the Closing Date, subsequent to the respective dates as of which information is given in the Prospectusprovisions hereof: (i) there has been no Material Adverse Changerequires any consent or other permit of, or filing by it with or notification to, any development that could reasonably be expected to result in a Material Adverse Change; Governmental Entity or any other Person by it except as contemplated by the Merger Agreement, or (ii) results in a violation or breach of, or constitutes (with or without notice or lapse of time or both) a default (or gives rise to any third party right of termination, cancellation, material modification or acceleration) under any of the Company and its subsidiariesterms, considered as one entityconditions or provisions of any contract to which it is a party, have other than, in each case in this clause (f), any matter which would not incurred adversely affect in any material liability respect the ability of such Fund to perform its obligations hereunder or obligation, indirect, direct consummate the transactions contemplated hereby. Each Fund hereby agrees that it will not cause or contingent, not in permit the ordinary course redemption or repurchase by Parent or Merger Sub of business nor entered into any material transaction securities of Parent or agreement not in the ordinary course of business; Merger Sub (iii) there has been no or any dividend or distribution of any kind declared, paid by Parent or made by the Company or any of its subsidiaries (other than dividends paid to the Company or other subsidiaries of the CompanyMerger Sub) on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock other than regular quarterly dividends payable on the Company's Series D Preferred Stock; and (iv) there has been no material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, considered so long as one entity, except in each case described in the Prospectus.
(n) Complete and correct copies of the Exchange Offer Material have been furnished to the Dealer Manager or will be furnished to the Dealer Manager no later than the Commencement Date.
(o) Ernst & Young LLP (the "INDEPENDENT ACCOUNTANTS"), who have expressed their opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) and supporting schedules included or incorporated by reference is in the Exchange Offer Material are independent public or certified public accountants within the meaning of the AICPA Rules of Practiceeffect.
(p) The statements set forth in the Prospectus as amended or supplemented under the caption "Description of the New Notes", insofar as they purport to constitute a summary of the terms of the New Notes, and as set forth under the captions "Risk Factors", "Summary Comparison of the Key Differences between the Old Indenture and the New Indenture", "The Consent Solicitation", "Description of the New Notes" and "Material United States Federal Income Tax Consequences", insofar as they purport to constitute a summary of the provisions of the laws and documents referred to therein, are accurate in all material respects.
(q) The financial statements, together with the related schedules and notes, included or incorporated by reference in the Exchange Offer Material present fairly in all material respects the consolidated financial position of the Company and its subsidiaries considered as one entity, as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.
(r) All of the outstan
Appears in 1 contract
Sources: Equity Commitment Agreement (Z Capital Partners, L.L.C.)
Representations Warranties and Certain Agreements. The Company and each Guarantor represents and warrants to the Dealer Manageryou, and agrees with the Dealer Manageryou, as followsthat:
(a) A registration statement on Form S-4, as amended by Amendment No.1 to such registration statement, (Registration No. 333-90556) (the "INITIAL REGISTRATION STATEMENT") in respect of the New Notes has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-has become effective amendment thereto, each in the form heretofore delivered to the Dealer Manager, have been declared effective by the Commission in such form; other than (i) the documents incorporated by reference in the prospectus included therein (which have heretofore been delivered to the Dealer Manager), (ii) the exhibits to the Initial Registration Statement and such documents and (iii) any prospectuses filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "ACT") (which have heretofore been delivered or made available to the Dealer Manager), no other documents with respect to the Initial Registration Statement or documents incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto has been issued is in effect, and no proceeding proceedings for that such purpose has been initiated is pending before or threatened by the Commission Commission.
(any preliminary prospectus included b) in the Initial Registration Statement or filed connection with the Commission pursuant Exchange Offer and Consent Solicitation, the Company has complied, and will continue to Rule 424(a) comply, in all material respects with the applicable provisions of the rules and regulations of the Commission under the Act, is herein called a "PRELIMINARY PROSPECTUS"); the various parts of the Initial Registration Statement, including all exhibits (but excluding the Form T-1), annexes and schedules thereto and including (i) the information contained in a form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 2(b) hereof and (ii) the documents incorporated by reference into the prospectus contained in the Initial Registration Statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, are herein collectively called the "REGISTRATION STATEMENT"; such final prospectus, in the form included in the Registration Statement at the time it became effective or first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "PROSPECTUS"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the relevant item or items of Form S-4 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), including, without limitation, Rules 14e-1, 14e-3 and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a10b-5 thereunder.
(i) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement.
(b) The documents incorporated by reference in the Prospectus, when they it became effective effective, did not contain, and as amended or were filed with the Commissionsupplemented, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as if applicable, and the rules and regulations of the Commission thereunder, and none of such documents when they become effective or were filed with the Commission, as the case may be, 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 or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and will not contain an 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.
; (cii) The Registration Statement conforms, and the Prospectus, any further amendments or supplements to the Registration Statement or the Prospectus and the Exchange Offer and Consent Solicitation Material comply and, as amended or supplemented, if applicable, will conform at the time of filing, comply in all material respects to with the requirements Securities Act of 1933, as amended (the "Securities Act, ") and the Exchange Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations promulgated of the Commission thereunder and (iii) the "TRUST INDENTURE ACT")Exchange Offer and Consent Solicitation Material, do not contain and, as amended or supplemented, if applicable, and do will not and will not, as of the applicable effective date as to the Registration Statement and contain any amendment thereto, as of the applicable filing date as to the Prospectus and any amendment or supplement thereto and as of the date of first use as to any other Exchange Offer Material, 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 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 (A) to statements or omissions in the Exchange Offer and Consent Solicitation Material based upon information relating to you furnished in writing by you to the Company expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the trustee for the New Securities (the "Trustee").
(d) Neither a complete and correct copy of the Company nor any of its subsidiaries which meets the definition of a significant subsidiary as defined in Rule 1-02 of Regulation S-X (a "SIGNIFICANT SUBSIDIARY") Exchange Offer and Consent Solicitation Material has sustained, since been furnished to you or will be furnished to you no later than the date of the latest audited financial statements included or incorporated by reference in the Prospectus, 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 Prospectus; and, since the respective dates as of which information Exchange Offer and Consent Solicitation is given in the Registration Statement and the Prospectus, there has not been any increase in long-term debt of the Company or any of its subsidiaries (other than borrowings under the Credit Agreement, dated May 1, 1998, and any amendments thereto, by and among the Company, the lending institutions named therein and KeyBank National Association commenced (the "Credit AgreementCommencement Date")) or any material adverse change, in the condition, financial or otherwise, or in the earnings, management, financial position, shareholders' equity or results of operations or prospects whether or not arising from transactions in the ordinary course or business, of the Company and its subsidiaries, considered as one entity (a "Material Adverse Change") or any development involving a prospective Material Adverse Change, otherwise than as set forth or contemplated in the Prospectus.
(e) The Company it has been duly incorporated and organized, is validly existing as a corporation variable capital company (sociedad anonima de capital variable) under the laws of Mexico and has the State of Delaware. The Company has corporate power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement Prospectus and to consummate the Exchange Offer in accordance with its terms. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason the conduct of the its business or its ownership or leasing of property or the conduct of businessproperties requires such qualification, except for such jurisdictions where to the extent that the failure to be so qualify or to be in good standingqualified would not have a material adverse affect on the Company and its subsidiaries, could not, individually or in the aggregate, reasonably be expected to result in taken as a Material Adverse Changewhole.
(f) Each each Material Subsidiary (as defined below) of the Significant Subsidiaries and each Guarantor Company has been duly incorporated and organized, is validly existing as a corporation and, with respect to each Material Subsidiary incorporated in the United States, is in good standing under the laws of the jurisdiction of its incorporation and incorporation; has the corporate power and authority to own, lease and operate own its properties property and to conduct its business as described in the Registration Statement and, in the case of each Guarantor, to consummate the Exchange Offer in accordance with its terms. Each of the Significant Subsidiaries Prospectus and each Guarantor is duly qualified as a foreign corporation to transact business and and, with respect to each Material Subsidiary incorporated in the United States, is in good standing in each jurisdiction in which such qualification is required, whether by reason the conduct of the its business or its ownership or leasing of property or the conduct of businessproperties requires such qualification, except for such jurisdictions where to the extent that the failure to be so qualify qualified or to be in good standing could not, individually or in the aggregate, reasonably be expected to result in would not have a Material Adverse Change. All of the issued and outstanding capital stock of each of the Significant Subsidiaries and each Guarantor 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 other than the Credit Agreement.
(g) The Company and each Guarantor has the corporate power and authority to take, and has taken, all necessary corporate action to authorize (i) the making and consummation of the Exchange Offer, (ii) the Proposed Amendments to the Old Indenture; (iii) the execution, delivery and performance of the New Indenture and the New Notes and (iv) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and the Company has the corporate power and authority to take, and has taken, all necessary corporate action to authorize the payment for Consents by the Company pursuant to the Exchange Offer; and the Company and each Guarantor has taken or will take all necessary corporate action to authorize any amendments or supplements to, or modification of, the Exchange Offer and the Exchange Offer Materials.
(h) This Agreement has been duly executed and delivered by, and is a valid and binding agreement of, the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles (the "ENFORCEABILITY EXCEPTIONS").
(i) The supplemental indenture to the Old Indenture, effecting the Proposed Amendments (the "SUPPLEMENTAL INDENTURE"), when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with its terms, subject to the Enforceability Exceptions; and material adverse affect on the date the Company completes the Exchange Offer (the "Closing Date"), the Old Indenture as supplemented by the Supplemental Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(j) On or prior to the Closing Date, the New Indenture shall have been duly executed and delivered by the Company and each of the Guarantors and qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery thereof by the New Trustee, will constitute a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, subject to the Enforceability Exceptions.
(k) The New Notes, when executed, authenticated, issued in accordance with the terms of the New Indenture and delivered to the holders of the Old Notes who tender their Old Notes in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and be entitled to the benefits of the New Indenture; and the guarantees of the New Notes issued by the Guarantors, as of the Closing Date, will be in the respective forms contemplated by the New Indenture, will have been duly authorized by the Guarantors and, when executed, authenticated and issued in accordance with the terms of the New Indenture, upon endorsement of the New Notes by each of the Guarantors and when delivered to the holders of the Old Notes who tender their Old Notes, in accordance with the terms of the Exchange Offer, will constitute valid and binding obligations of each of the Guarantors, enforceable against each Guarantor in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the New Indenture.
(l) The Old Notes, the Old Indenture, the New Notes, the Guarantees and the New Indenture conform or will conform in all material respects to the respective statements relating thereto contained in the Prospectus.
(m) Except as otherwise disclosed in the Prospectus as of the date hereof (the "Commencement Date") and except as otherwise disclosed in the Prospectus as amended and supplemented as of the Closing Date, subsequent to the respective dates as of which information is given in the Prospectus: (i) there has been no Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change; (ii) the Company and its subsidiaries, considered taken as one entitya whole. "Material Subsidiary" means Group Industrial Durango, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; S.A. de C.V. (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or any of its subsidiaries (other than dividends paid to the Company or other subsidiaries of the Company) on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock other than regular quarterly dividends payable on the Company's Series D Preferred Stock; and (iv) there has been no material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, considered as one entity, except in each case described in the Prospectus.
(n) Complete and correct copies of the Exchange Offer Material have been furnished to the Dealer Manager or will be furnished to the Dealer Manager no later than the Commencement Date.
(o) Ernst & Young LLP (the "INDEPENDENT ACCOUNTANTSGID"), who have expressed their opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) Durango International, Inc., ▇▇▇▇▇▇▇▇ Paper Company, Group PIPSAMEX S.A. de C.V., Durango Paper Company, Durango-Georgia Paper Company, Industrial Centauro, S.A. de C.V., Empaques de Cartsrn Titfsn, S.A. de C.V. and supporting schedules included or incorporated by reference in the Exchange Offer Material are independent public or certified public accountants within the meaning of the AICPA Rules of Practice.
(p) The statements set forth in the Prospectus as amended or supplemented under the caption "Description of the New Notes"Ponderosa Industrial de Mexico, insofar as they purport to constitute a summary of the terms of the New Notes, and as set forth under the captions "Risk Factors", "Summary Comparison of the Key Differences between the Old Indenture and the New Indenture", "The Consent Solicitation", "Description of the New Notes" and "Material United States Federal Income Tax Consequences", insofar as they purport to constitute a summary of the provisions of the laws and documents referred to therein, are accurate in all material respects.
(q) The financial statements, together with the related schedules and notes, included or incorporated by reference in the Exchange Offer Material present fairly in all material respects the consolidated financial position of the Company and its subsidiaries considered as one entity, as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.
(r) All of the outstanS.A. de C.V.
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