Exhibit 1.1
UNDERWRITING AGREEMENT
$300,000,000
CABOT CORPORATION
5.00% Senior Notes due
2016
Underwriting
Agreement
September 21, 2009
J.P. Morgan Securities
Inc.
Banc of America Securities LLC
As Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Cabot Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), $300,000,000
principal amount of its 5.00% Senior Notes due 2016 (the
“Securities”). The Securities will be issued pursuant
to an indenture to be dated as of September 21, 2009 (the
“Base Indenture”), as amended and supplemented by a
first supplemental indenture to be dated as of September 24,
2009 (the “Supplemental Indenture” and, together with
the Base Indenture, the “Indenture”) between the
Company and U.S. Bank Trust National Association, as trustee (the
“Trustee”).
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Securities, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3 (File
No. 333-162021), including a prospectus, relating to the
Securities. Such registration statement, as amended at the time it
becomes effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the
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registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to
herein as the “Registration Statement”; and as used
herein, the term “Preliminary Prospectus” means each
prospectus included in such registration statement (and any
amendments thereto) before it becomes effective, if applicable, any
prospectus filed with the Commission pursuant to Rule 424(a) under
the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430
Information, and the term “Prospectus” means the
prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the time when sales
of the Securities were first made (the “Time of Sale”),
the Company had prepared the following information (collectively
with the information referred to in the next succeeding sentence,
the “Time of Sale Information”): a Preliminary
Prospectus dated September 21, 2009, and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex B hereto as
constituting part of the Time of Sale Information.
2. Purchase of the Securities by
the Underwriters . (a) The Company agrees to issue and
sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal
amount of Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price equal to 98.697% of the
principal amount thereof plus accrued interest, if any, from
September 24, 2009 to the Closing Date (as defined below). The
Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the
Underwriters intend to make a public offering of the Securities as
soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the
Securities on the
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terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell Securities purchased by it to
or through any Underwriter.
(c) Payment for and delivery of the
Securities will be made at the offices of Davis Polk &
Wardwell LLP, 450 Lexington Avenue, New York, New York 10017 at
10:00 A.M., New York City time, on September 24, 2009, or at
such other time or place on the same or such other date, not later
than the fifth business day thereafter, as the Representatives and
the Company may agree upon in writing. The time and date of such
payment and delivery is referred to herein as the “Closing
Date”.
(d) Payment for the Securities shall
be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representatives against
delivery to the nominee of The Depository Trust Company, for the
account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with
the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representatives
not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
(e) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representatives nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with
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respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary
Prospectus.
(b) Time of Sale Information
. The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in such Time of Sale Information. No statement of
material fact will be included in the Prospectus that has been
omitted from the Time of Sale Information and no statement of
material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted
therefrom.
(c) Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clauses
(i) (ii) and (iii) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex B hereto as constituting
the Time of Sale Information and (v) any electronic road show
or other written communications, in each case approved in writing
in advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of
the Securities Act
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that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated
or threatened by the Commission; as of the applicable effective
date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material
respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”),
and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date, the Prospectus
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto.
(e) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when
they were filed with the Commission conformed in all material
respects to the requirements of the Exchange Act, of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) and, as of their
respective dates, none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, 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 Securities Act or the Exchange Act, as applicable, and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Financial Statements. The
financial statements (including the related notes and supporting
schedules) included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus present fairly
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in all material respects the financial
condition, results of operations and changes in financial position
of the Company and its subsidiaries on the basis stated therein at
the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with United States generally accepted
accounting principles consistently applied throughout the periods
involved; the supporting schedules, if any, included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus present fairly in accordance
with United States generally accepted accounting principles the
information required to be stated therein; and the other financial
and statistical information and data set forth or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements
(including the related notes and supporting schedules) and the
books and records of the Company.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock
(other than its regular quarterly dividend on its common stock), or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position or results of operations
of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained 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 disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case of clauses (i)-(iii),as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(h) Organization and Good
Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing as corporations or other
business organizations, as applicable, in good standing under the
laws of their respective jurisdictions of incorporation or
organization, as applicable, are duly qualified to do business and
are in good standing as foreign corporations or other business
organizations, as applicable, in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where the failure to so qualify to be in good standing would
not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the consolidated financial
position, stockholders’ equity, results
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of operations or business of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”); and none of the subsidiaries of the Company, other
than Cabot Finance B.V., Cabot International Capital Corporation,
Cabot Canada Ltd., Cabot B.V., Cabot Carbon Limited, Cabot G.B.
Limited, Cabot (Bermuda) Ltd., Cabot Argentina S.A.I.C., CMHC,
Inc., Cabot (China) Limited, Shanghai Cabot Chemical Company Ltd.,
Cabot Chemical (Tianjin) Co., Ltd., P.T. Cabot Indonesia, Cabot
Japan K.K., CDE Company, Cabot Luxembourg Holdings S.a.r.l., Cabot
UK Holdings Limited, Cabot Specialty Fluids Limited, Cabot
Luxembourg Investments S.a.r.l. and CS Cabot spol. s.r.o., is a
“significant subsidiary,” as such term is defined in
Rule 405 under the Exchange Act.
(i) Capitalization. The
Company had an authorized and issued capitalization on
June 30, 2009 as set forth in the Registration Statement, the
Time of Sale Information and the Prospectus, and all of the issued
shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable; and all of
the issued shares of capital stock or membership interests, as
applicable, of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable
and, except as described in the Registration Statement, the Time of
Sale Information and the Prospectus and for directors’
qualifying shares, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims.
(j) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the
“Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(k) The Indenture. The
Indenture has been duly authorized by the Company and upon
effectiveness of the Registration Statement was or will have been
duly qualified under the Trust Indenture Act and, when duly
executed and delivered in accordance with its terms by each of the
parties thereto, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability (collectively, the
“Enforceability Exceptions”).
(l) The Securities . The
Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company
in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(m) Underwriting Agreement .
This Agreement has been duly authorized, executed and delivered by
the Company.
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(n) Descriptions of the
Transaction Documents . Each Transaction Document conforms in
all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(o) No Violation or Default.
Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or bylaws, (ii) is in default, and no
event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease, pledge
or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree (whether domestic or foreign) to
which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or
other governmental authorization or permit (whether domestic or
foreign) necessary to the ownership of its property or to the
conduct of its business, except in the case of clauses
(ii) and (iii) for such defaults or violations that have
not individually or in the aggregate had, and would not reasonably
be expected to have, a Material Adverse Effect or have a material
adverse effect on the ability of the Company to perform its
obligations under the Transaction Documents.
(p) No Conflicts. The
execution, delivery and performance by the Company of the
Transaction Documents to which it is a party and the consummation
of the transactions contemplated hereby and thereby, including the
issuance and sale of the Securities will not (i) conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement, lease, pledge
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or bylaws of the
Company or any of its subsidiaries, (iii) result in any
violation of any statute or any order, rule or regulation of any
court or governmental agency or body (whether domestic or foreign)
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets, or (iv) result in the
imposition or creation of (or the obligation to create or impose) a
material lien under any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective properties
or assets is bound or (v) result in the suspension,
termination or revocation of any Authorization (as defined in
Section 3(y) hereof) of the Company or any of its subsidiaries
or any other impairment of the rights of the holder of any such
Authorization.
(q) No Consents Required .
Except (i) as required by applicable state securities or
“blue sky” laws and (ii) for such consents,
approvals, authorizations, orders, filings or registrations that
have been obtained or made, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body (whether domestic or foreign) having jurisdiction
over the Company or any of its subsidiaries or any of their
properties or assets is required for the execution, delivery and
performance by the Company of the Transaction Documents and
the
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consummation of the transactions contemplated
hereby and thereby, including the issuance and sale of the
Securities.
(r) Legal Proceedings. Except
as disclosed in the Time of Sale Prospectus and the Prospectus,
there are no legal or governmental proceedings (whether domestic or
foreign) pending to which the Company or any of its subsidiaries is
a party or of which any property or assets of the Company or any of
its subsidiaries is the subject that would reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect or have a material adverse effect on the ability of the
Company to perform its obligations under the Transaction Documents;
and to the best of the Company’s or any of its
subsidiaries’ knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(s) Independent Accountants.
To the knowledge of the Company after due inquiry, each of
Deloitte & Touche LLP and Pricewaterhouse Coopers LLP, who
have certified certain financial statements of the Company and its
subsidiaries, were, as of the date of such certification,
independent registered public accounting firms with respect to the
Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(t) Title to Real and Personal
Property. The Company and each of its subsidiaries have good
and marketable title to all real property and good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects, except such as are
described in the Time of Sale Prospectus and the Prospectus or such
as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and all assets held
under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, except such as are
described in the Time of Sale Prospectus and the Prospectus or such
as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(u) Title to Intellectual
Property. The Company and each of its subsidiaries own or
possess adequate rights to use all patents, patent rights, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, inventions,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary of confidential information, systems or
procedures) and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any infringement of or conflict with
asserted rights of others with respect to any of such intellectual
property, except where the failure to own or possess such rights or
to infringe or conflict with the rights of others would not
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(v) No Undisclosed
Relationships. No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the
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directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Time of Sale
Information.
(w) Investment Company Act.
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale
Information and the Prospectus, will not be an “investment
company” or an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively,
“Investment Company Act”).
(x) Taxes. The Company and
its subsidiaries have paid all material federal, state, local and
foreign taxes and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or assets
that would have, individually or in the aggregate, a Material
Adverse Effect.
(y) Licenses and Permits.
Except as set forth in the Time of Sale Prospectus and the
Prospectus, the Company and each of its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations
and other approvals (each, an “Authorization”) of, and
has made all filings with and notices to, all governmental or
regulatory authorities (whether domestic or foreign) and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable environmental
law, ordinance, rule, regulation, order, judgment, decree or
permit, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing
or notice would not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect; each such Authorization
is valid and in full force and effect and the Company and each of
its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no
event has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome
to the Company or any of its subsidiaries, except where such
failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not individually or in the aggregate
reasonably be expected to have a Material Adverse
Effect.
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(z) No Labor Disputes. No
labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the
Company, is contemplated or threatened.
(aa) Compliance With
Environmental Laws. Except as otherwise stated in the
Registration Statement, the Time of Sale Information and the
Prospectus and except as would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse
Effect, (A) neither the Company, nor any of its subsidiaries,
is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental
Laws”), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries,
and (D) there are no events or circumstances that may
reasonably be expected to form the basis of an order for cleanup or
remediation, or an action, suit or proceeding by
