Common Stock
(par value $0.20 per share)
GOODRICH PETROLEUM
CORPORATION
BEAR, STEARNS
& CO. INC.
383 Madison Avenue
New York, New York 10179
Goodrich
Petroleum Corporation, a corporation organized and existing under
the laws of Delaware (the “Company”), subject to the
terms and conditions stated herein and pursuant to the Share
Lending Agreement (the “Share Lending Agreement”) dated
November 30, 2006, between the Company and Bear, Stearns
International Limited (“BSIL”) through Bear, Stearns
& Co. Inc., as agent (in such capacity, the
“Agent”), an affiliate of the underwriter named in
Schedule I hereto (the “Underwriter”), proposes to
issue and loan to BSIL as a share loan (the “Loan”)
pursuant to and upon the terms set forth in the Share Lending
Agreement, up to 3.3 million shares of Common Stock, $0.20 par
value (“Common Stock”) of the Company (said shares to
be issued and loaned by the Company being hereinafter called the
“Shares”).
Concurrently
with the issuance of the Shares, the Company is offering in a
transaction exempt from registration under the Securities Act by
means of a confidential offering memorandum $125,000,000 aggregate
principal amount of the Company’s Convertible Senior Notes
due 2026 (the “Notes”). Bear, Stearns & Co. Inc.,
Deutsche Bank Securities Inc. and BNP Paribas Securities Corp. are
acting as the initial purchasers (collectively, the “Initial
Purchasers”) in the concurrent offering of Notes. The Company
has granted the Initial Purchasers an option (the
“Option”) to purchase up to an additional $50,000,000
aggregate principal amount of Notes. The Company and the Initial
Purchasers will be entering into a purchase agreement with respect
to such offering.
1.
Representations and Warranties of the Company . The Company
represents and warrants to, and agrees with, the Underwriter
that:
(a) The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement under the
Securities Act of 1933, as amended (the “Securities
Act”), on Form S-3 (No. 333-129642) (the initial
filing and all pre-effective
amendments
thereto collectively being referred to as the “Initial
Registration Statement”); and such Initial Registration
Statement, and any post-effective amendment thereto, each in the
form previously delivered to you, have been declared effective by
the Commission, in such form. Other than a registration statement,
if any, increasing the size of the Offering (a
“Rule 462(b) Registration Statement”) filed
pursuant to Rule 462(b) under the Securities Act, which will become
effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission. The various parts of the Initial Registration Statement
and the 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained
in the form of final prospectus filed with the Commission pursuant
to Rule 424(b) under the Securities Act in accordance with Section
4(a) hereof and deemed by virtue of Rule 430A under the Securities
Act to be part of the Initial Registration Statement at the time it
became effective under the Securities Act with respect to the
Underwriter, and (ii) the documents incorporated by reference
in the prospectus contained in the Initial Registration Statement
at the time such part of the Initial Registration Statement becomes
effective, each as amended at the time such part of the Initial
Registration Statement or Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective under the Securities Act
with respect to the Underwriter, are hereafter collectively
referred to as the “Registration Statement.” 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 Securities Exchange
Act of 1934, as amended (the “Exchange Act”), after the
effective date of the Initial Registration Statement that is
incorporated by reference therein. No stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the
Commission.
The
prospectus supplement dated as of November 30, 2006, in the
form in which it is to be filed with the Commission pursuant to
Rule 424(b) (the “Prospectus Supplement”), along with
the base prospectus included as part of the Registration Statement
at the time the Registration Statement became effective (the
“Base Prospectus”), is hereinafter referred to as the
“Prospectus,” except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriter by the
Company for use in connection with the Offering which differs from
the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b)), the term “Prospectus”
shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary
prospectus supplement or supplements to the Base Prospectus,
together with the Base Prospectus, which describes the Shares and
the Offering, is hereafter called a “Preliminary
Prospectus.” Any reference herein to the Preliminary
Prospectus or the Prospectus shall be deemed to include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on
or before the date of such Preliminary Prospectus or the date of
the Prospectus, as the case may be. Any “issuer free writing
prospectus” (as defined in Rule 433 under the Securities
Act) relating to the Shares is hereafter referred to as an
“Issuer Free Writing Prospectus”; and the Prospectus,
as supplemented by the price paid by the investors and the Issuer
Free Writing Prospectuses, if any, attached and listed in Annex III
hereto, taken together, are hereafter referred to collectively as
the “Pricing Disclosure Package”. Any reference herein
to any “amendment” or “supplement” to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include (i) the filing of any document under the
Exchange Act after the
date of such
Preliminary Prospectus or Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document
so filed.
The
Company was not an “ineligible issuer” (as defined in
Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the
Securities Act with respect to the offering of the Shares
contemplated hereby.
All
references in this Agreement to the Registration Statement, any
Preliminary Prospectus, Issuer Free Writing Prospectus or the
Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System (“EDGAR”).
(b) With
respect to the Registration Statement, at the time of the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement or the effectiveness of any post-effective
amendment to the Registration Statement and with respect to the
Prospectus, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) or Rule 434 under the Securities Act
(“Rule 434”), when any supplement to or amendment
of the Prospectus is filed with the Commission, and at the Closing
Date (as hereinafter defined), the Registration Statement complies
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will comply in all
material respects with the applicable provisions of the Securities
Act, the Exchange Act and the rules and regulations of the
Commission thereunder (the “Rules and Regulations”),
and did not 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 in order to make the statements therein (i) in
the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
any information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the
Underwriter specifically for use therein. The parties hereto agree
that such information provided by or on behalf of the Underwriter
consists solely of the material referred to in Section 16
hereof.
(c) No
order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the
applicable provisions of the Securities Act, the Exchange Act and
the Rules and Regulations, 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; provided, however, that this representation and
warranty shall not apply to any information contained in or omitted
from any Preliminary Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of the Underwriter specifically for use therein. The parties
hereto agree that such information provided by or on behalf of the
Underwriter consists solely of the material referred to in
Section 16 hereof.
(d) For
purposes of this Agreement, the “Applicable Time” is
4:00 p.m. (Eastern) on the date of this Agreement. The Pricing
Disclosure Package, as of the Applicable
Time, did not,
and as of the Closing Date (as hereinafter defined), 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, in the light of the circumstances under
which they were made, not misleading. Each Issuer Free Writing
Prospectus complies in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations, and
does not include information that conflicts with the information
contained in the Registration Statement, the Prospectus, and each
Issuer Free Writing Prospectus not listed in Annex III hereto, as
supplemented by and taken together with the Pricing Disclosure
Package, as of the Applicable Time, did not, and as of the Closing
Date 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, in the light of the
circumstances under which they were made, not misleading. No
representation and warranty is made in this Section 1(d) with
respect to any information contained in or omitted from the Pricing
Disclosure Package or any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriter
specifically for use therein. The parties hereto agree that such
information provided by or on behalf of the Underwriter consists
solely of the material referred to in Section 16
hereof.
(e) KPMG
LLP, who have certified the financial statements and supporting
schedules and information of the Company and its subsidiaries that
are included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Securities Act, the Exchange Act and the Rules and
Regulations.
(f) Netherland
Sewell & Associates, Inc. (“Netherland Sewell”) and
Coutret and Associates, Inc. (“Coutret”), each being a
petroleum engineering firm from whose reserve reports information
is set forth in the Registration Statement and the Prospectus, are
independent petroleum engineers with respect to the Company. Other
than (i) the production of reserves in the ordinary course of
business (ii) intervening price fluctuations or (iii) as
described in the Registration Statement and the Prospectus, the
Company is not aware of any facts or circumstances that would
result in a material adverse change in its proved reserves in the
aggregate, or the aggregate present value of estimated future net
revenues of the Company or the standardized measure of discounted
future net cash flows therefrom, as described in the Registration
Statement and the Prospectus and reflected in the Reserve
Information as of the respective dates such information is given.
Estimates of the proved reserves and the present value of the
estimated future net revenues and the discounted future net cash
flows derived therefrom as described in the Registration Statement
and the Prospectus and reflected in the Reserve Information comply
in all material respects to the applicable requirements of
Regulation S-X of the Securities Act Regulations and Industry
Guide 2 under the Securities Act.
(g) Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as disclosed in
the Prospectus, the Company has not declared, paid or made any
dividends or other distributions of any kind on or in respect of
its capital stock and there has been no material adverse change or
any development involving a prospective material adverse change,
whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise),
results of operations, stockholders’ equity, properties or
prospects of the Company and each subsidiary of the Company listed
on Exhibit A hereto (the “Subsidiaries”), taken as
a whole (a “Material Adverse
Change”).
Since the date of the latest balance sheet included, or
incorporated by reference, in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary has incurred or
undertaken any liabilities or obligations, whether direct or
indirect, liquidated or contingent, matured or unmatured, or
entered into any transactions, including any acquisition or
disposition of any business or asset, which are material to the
Company and the Subsidiaries, individually or taken as a whole,
except for liabilities, obligations and transactions incurred in
the ordinary course of business which are disclosed in the
Prospectus.
(h) The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus under the caption
“Capitalization” (other than for subsequent issuances
in the ordinary course of business, if any, pursuant to employee
benefit plans or upon exercise of outstanding options or conversion
of convertible securities described in the Prospectus) and, after
giving effect to the Loan, will be as set forth in the column
headed “As Adjusted” under the caption
“Capitalization.” All of the issued and outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and were
not issued in violation of or subject to any preemptive or similar
right that does or will entitle any person, upon the issuance or
sale of any security, to acquire from the Company or any Subsidiary
any Common Stock or other security of the Company or any security
convertible into, or exercisable or exchangeable for, Common Stock
or any other such security (any “Relevant Security”),
except for such rights as may have been fully satisfied or waived
prior to the effectiveness of the Registration
Statement.
(i) The
Shares to be delivered on the Closing Date have been duly and
validly authorized and, when issued and delivered in accordance
with this Agreement, will be duly and validly issued, fully paid
and non-assessable , and will not have been issued in
violation of or subject to any preemptive or similar right that
entitles any person to acquire any Relevant Security from the
Company. The Common Stock and the Shares conform to the
descriptions thereof contained in the Registration Statement and
the Prospectus. Except as disclosed in the Prospectus, the Company
has no outstanding warrants, options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, any Relevant Security
(other than for subsequent issuances in the ordinary course of
business, if any, pursuant to employee benefit plans). Except as
disclosed in the Prospectus, no holder of any Relevant Security has
any rights to require registration under the Securities Act of any
Relevant Security in connection with the offer and sale of the
Shares contemplated hereby.
(j) The
Subsidiaries are the only “subsidiaries” of the Company
within the meaning of Rule 405 under the Securities Act.
Except for the Subsidiaries and as otherwise disclosed in the
Registration Statement and the Prospectus, the Company holds no
ownership or other interest, nominal or beneficial, direct or
indirect, in any corporation, partnership, joint venture or other
business entity. Goodrich Petroleum Company LLC and Goodrich
Petroleum Company — Lafitte, LLC (each, a “Principal
Subsidiary” and together, the “Principal
Subsidiaries”) are the only Subsidiaries that meet the
definition of “significant subsidiary” of the Company
under the conditions specified in Rule 1-02(w)
Regulation S-X under the Securities Act. All of the issued
shares of capital stock of or other ownership interests in each
Principal Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly
or indirectly by the Company free and clear of any lien,
charge,
mortgage, pledge, security interest, claim, equity, trust or other
encumbrance, preferential arrangement, defect or restriction of any
kind whatsoever (any “Lien”).
(k) Each
of the Company and the Principal Subsidiaries has been duly
organized and validly exists as a corporation, partnership or
limited liability company in good standing under the laws of its
jurisdiction of organization. Each of the Company and the
Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation, partnership or limited liability
company in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which
(individually and in the aggregate) could not reasonably be
expected to have a material adverse effect on the business,
condition (financial or otherwise), results of operations,
stockholders’ equity, properties or prospects of the Company
and the Subsidiaries, individually or taken as a whole (a
“Material Adverse Effect”). Each of the Company and the
Principal Subsidiaries has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of,
with and from all judicial, regulatory and other legal or
governmental agencies and bodies (collectively, the
“Consents”), to own, lease and operate its properties
and conduct its business as it is now being conducted and as
disclosed in the Registration Statement and the Prospectus. No
Consent contains a materially burdensome restriction not adequately
disclosed in the Registration Statement and the
Prospectus.
(l) The
Company has the requisite corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus. This Agreement and
the transactions contemplated by this Agreement have been duly and
validly authorized by the Company. This Agreement has been duly and
validly executed and delivered by the Company.
(m) The
execution, delivery, and performance by the Company of this
Agreement and consummation of the transactions contemplated by this
Agreement do not and will not (i) conflict with, require
consent under or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would 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 any
Subsidiary pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement, instrument, franchise, license
or permit to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or their respective properties,
operations or assets may be bound, (ii) violate or conflict
with any provision of the certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company
agreement, partnership agreement or other organizational documents
of the Company or any Subsidiary, or (iii) violate or conflict
with any law, rule, regulation, ordinance, directive, judgment,
decree or order of any judicial, regulatory or other legal or
governmental agency or body, domestic or foreign, except (in the
case of clauses (i) and (iii) above) as could not
reasonably be expected to have a Material Adverse
Effect.
(n) No
Consent of, with or from any judicial, regulatory or other legal or
governmental agency or body or any third party, foreign or
domestic, is required for the execution, delivery and performance
of this Agreement or consummation of the transactions
contemplated by
this Agreement, except the registration under the Securities Act of
the Shares, which is in full force and effect, and such consents as
may be required under state or foreign securities or blue sky laws
or the by-laws and rules of the National Association of Securities
Dealers, Inc. (the “NASD”) in connection with the
purchase and distribution of the Shares by the
Underwriters.
(o) Except
as disclosed in the Registration Statement and the Prospectus,
there is no legal or governmental proceeding to which the Company
or any Subsidiary is a party or of which any property, operations
or assets of the Company or any Subsidiary is the subject which,
individually or in the aggregate, if determined adversely to the
Company or any Subsidiary, could reasonably be expected to have a
Material Adverse Effect; to the Company’s knowledge, no such
proceeding is threatened or contemplated.
(p) The
financial statements, including the notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly, in all material respects, the financial
position as of the dates indicated and the cash flows and results
of operations for the periods specified of the Company and its
consolidated subsidiaries; and except as otherwise stated in the
Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent
basis throughout the periods involved. The other financial and
statistical information included or incorporated by reference in
the Registration Statement and the Prospectus are correct and
accurate in all material respects and, with respect to such
financial information, have been prepared on a basis consistent
with that of the financial statements that are included or
incorporated by reference in the Registration Statement and the
Prospectus from which such information has been derived.
(q) The
Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act and files reports with the Commission
on EDGAR. The Common Stock is registered pursuant to Section 12(b)
of the Exchange Act and the outstanding shares of Common Stock are
listed on the New York Stock Exchange (the “NYSE”) and
the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act or de-listing the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or
the NYSE is contemplating terminating such registration or
listing.
(r) The
documents incorporated or deemed to be incorporated by reference
into the Prospectus at the time they were filed with the
Commission, complied in all material respects with the requirements
of the Exchange Act and the rules and regulations
thereunder.
(s) The
Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization, and (iv) the recorded accounting for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(t) Neither
the Company nor any of its affiliates (within the meaning of
Rule 144 under the Securities Act) has taken, directly or
indirectly, any action which constitutes or is designed to cause or
result in, or which could reasonably be expected to constitute,
cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the
Shares.
(u) The
Company is not and, at all times up to and including consummation
of the transactions contemplated by this Agreement, the Share
Lending Agreement and the Prospectus, and after giving effect to
application of the net proceeds of the Loan as described in the
Share Lending Agreement and the Prospectus, will not be, required
to register as an “investment company” under the
Investment Company Act of 1940, as amended, and is not and will not
be an entity “controlled” by an “investment
company” within the meaning of such act.
(v) No
relationship, direct or indirect, exists between or among the
Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company
or any affiliate of the Company, on the other hand, which is
required by the Exchange Act to be described in the Company’s
annual and/or quarterly reports on Form 10-K and 10-Q, as
applicable, which is not so described and described as required in
such reports. There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or
any of their respective family members. The Company has not, in
violation of the Sarbanes-Oxley Act, directly or indirectly,
including through a Subsidiary, extended or maintained credit,
arranged for the extension of credit, or renewed an extension of
credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(w) Except
as otherwise set forth in the Registration Statement and the
Prospectus, and except for (i) the usual and customary liens
in favor of the operator under applicable operating agreements,
(ii) mechanic’s and materialman’s liens that are
not delinquent or are being disputed in good faith,
(iii) liens of the various taxing authorities for ad
valorem property taxes that are not yet due, or if due, are not
delinquent, and (iv) such other liens, encumbrances and
defects that, individually or in the aggregate, would not
materially affect the value thereof or materially interfere with
the use made or to be made thereof by them, the Company and its
Subsidiaries have title to the properties described in the
Registration Statement and the Prospectus as being owned by them as
follows: (A) with respect to producing properties (including
oil and gas wells, producing leasehold interests and appurtenant
personal property), such title is good and Defensible (as defined
below) and free and clear of all Liens; (B) with respect to
their respective non-producing leasehold properties (including
undeveloped locations on leases held by production and those leases
not held by production and including exploration prospects
described in the Registration Statement and the Prospectus as being
owned by them), such title was investigated in accordance with
customary industry procedures prior to the Company’s
acquisition thereof; (C) with respect to their respective real
property other than oil and gas interests described in the
Registration Statement and the Prospectus as being owned by them,
such title is good and indefeasible and free and clear of all
Liens; and (D) with respect to their respective personal
property other than that appurtenant to its oil and gas interests,
such title is free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and restrictions. As used
herein, “Defensible” means, with respect to title to
the producing properties
(including oil
and gas wells and producing leasehold interests) described in the
Registration Statement and the Prospectus as being owned by the
Company and its Subsidiaries, that the Company and its Subsidiaries
(i) are entitled to receive not less than the net revenue
interests of such properties as set forth in the reserve report of
Netherland Sewell dated as of December 31, 2005 (the
“Netherland Sewell Report”) of all hydrocarbons and
minerals produced, saved and marketed from such properties, and
proceeds thereof, all without reduction, suspension or termination
of such interests throughout the productive life of such
properties, and (ii) are obligated to bear a share of the
costs and expenses relating to the maintenance, exploration,
drilling, completion, development, operation, plugging and
abandonment of such properties not greater than the working
interests of such properties as set forth in the Netherland Sewell
Report, without increase throughout the life of such
properties.
(x) The
Company and each Subsidiary (i) owns or possesses adequate
right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, formulae, customer lists, and
know-how and other intellectual property (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their respective businesses as being conducted and as
described in the Registration Statement and the Prospectus and
(ii) have no reason to believe that the conduct of their
respective businesses does or will conflict with, and have not
received any notice of any claim of conflict with, any such right
of others.
(y) The
Company and the Subsidiaries maintain insurance in such amounts and
covering such risks as the Company reasonably considers adequate
for the conduct of its business and the value of its properties and
as is customary for companies engaged in similar businesses in
similar industries, all of which insurance is in full force and
effect, except where the failure to maintain such insurance could
not reasonably be expected to have a Material Adverse Effect. There
are no material claims by the Company or any Subsidiary under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause. The Company reasonably believes that it will be able to
renew its existing insurance as and when such coverage expires or
will be able to obtain replacement insurance adequate for the
conduct of the business and the value of its properties at a cost
that could not reasonably be expected to have a Material Adverse
Effect.
(z) Each
of the Company and the Subsidiaries has accurately prepared and
timely filed all federal, state, foreign and other tax returns that
are required to be filed by it and has paid or made provision for
the payment of all taxes, assessments, governmental or other
similar charges, including without limitation, all sales and use
taxes and all taxes which the Company or any Subsidiary is
obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax
returns (whether or not such amounts are shown as due on any tax
return), except where the failure to file or pay could not
reasonably be expected to have a Material Adverse Effect. No
deficiency assessment with respect to a proposed adjustment of the
Company’s or any Subsidiary’s federal, state, local or
foreign taxes is pending or, to the best of the Company’s
knowledge, threatened, except where such assessment could not
reasonably be expected to have a Material Adverse Effect. The
accruals and reserves on the books and records of the Company and
the Subsidiaries in respect of tax liabilities for any taxable
period not finally determined are adequate to meet any
assessments
and related
liabilities for any such period in all material respects and, since
December 31, 2005, the Company and the Subsidiaries have not
incurred any liability for taxes other than in the ordinary course
of its business. There is no tax lien, whether imposed by any
federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company or any
Subsidiary.
(aa) No
labor disturbance by the employees of the Company or any Subsidiary
exists or, to the best of the Company’s knowledge, is
imminent and the Company is not aware of any existing or imminent
labor disturbances by the employees of any of its or any
Subsidiary’s principal suppliers, manufacturers’,
customers or contractors, which, in either case (individually or in
the aggregate), could reasonably be expected to have a Material
Adverse Effect.
(bb) No
“prohibited transaction” (as defined in either
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 “Code”)), “accumulated
funding deficiency” (as defined in Section 302 of ERISA)
or other event of the kind described in Section 4043(b) of ERISA
(other 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 employee benefit plan for which the
Company or any Subsidiary would have any liability; each employee
benefit plan for which the Company or any Subsidiary would have any
liability is in compliance in all material respects with applicable
law, including (without limitation) ERISA and the Code; the Company
has not incurred and does not expect to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from
any “pension plan”; and each plan for which the Company
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which could cause
the loss of such qualification.
(cc) There
has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any
kind of toxic or other wastes or other hazardous substances by, due
to, or caused by the Company or any Subsidiary (or, to the
Company’s knowledge, any other entity for whose acts or
omissions the Company is or may be liable) upon any other property
now or previously owned or leased by the Company or any Subsidiary,
or upon any other property, which would be a violation of or give
rise to any liability under any applicable law, rule, regulation,
order, judgment, decree or permit relating to pollution or
protection of human health and the environment
(“Environmental Law”), except for any violation or
liability which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There has
been no disposal discharge, emission or other release of any kind
onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous
substances, except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary has agreed to assume, undertake or
provide indemnification for any liability of any other person under
any Environmental Law, including any obligation for cleanup or
remedial action. There is no pending or, to the best of the
Company’s knowledge, threatened administrative, regulatory or
judicial action, claim or notice of noncompliance or violation,
investigation or proceedings relating to any Environmental Law
against the Company or any
Subsidiary,
except where such action, claim, notice or violation could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(dd) Neither
the Company, any Subsidiary nor, to the Company’s knowledge,
any of its employees or agents has at any time during the last five
years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or
state governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States of any
jurisdiction thereof.
(ee) Neither
the Company nor any Subsidiary (i) is in violation of its
certificate or articles of incorporation, by-laws, certificate of
formation, limited liability company agreement, partnership
agreement or other organizational documents, (ii) is in
default under, and no event has occurred which, with notice or
lapse of time or both, would 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 any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan 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) is in violation in any respect of
any law, rule, regulation, ordinance, directive, judgment, decree
or order of any court or governmental or regulatory agency or body,
except (in the case of clauses (ii) and (iii) above)
violations or defaults that could not reasonably be expected to
have a Material Adverse Effect and except (in the case of clause
(ii) alone) for any lien, charge or encumbrance disclosed in
the Registration Statement and the Prospectus.
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